Patricia A. Pacifico v. George D. Pacifico

Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: Plaintiff appeals from that part of a judgment awarding her property and maintenance under New Yorks Equitable Distribution Law (EDL; Domestic Relations Law, § 236, part B). She contends that the court erred in (1) distributing certain business property solely to defendant; (2) refusing to consider "fault" in distributing property and awarding maintenance; and (3) determining the amount and duration of maintenance. The plaintiff wife and defendant were married in 1974 and separated eight years later. Although plaintiff had six children from her previous marriage, she and defendant had none. The court ordered an equal division of all assets except an automobile and the proceeds of a money market account, which were awarded solely to plaintiff, and the interest in two businesses, Pacifico Cleaners and Sweaters Etcetera, which was awarded solely to defendant. In awarding the businesses to defendant, the court erred on two accounts. First, it did not expressly state whether it found Pacifico Cleaners and Sweaters Etcetera marital or separate property (Domestic Relations Law, § 236, part B, subd 5, par g). This omission precludes intelligent review of the courts decision since we are unable to determine whether it erroneously found the businesses to be separate property or whether it found [101 A.D.2d 709 Page 710]