Rakowski v. Rakowski

— In an action for divorce, the defendant wife appeals from a judgment of the Supreme Court, Kings County (Rigler, J.), dated June 2, 1981, which, after a nonjury trial, inter alia, granted plaintiff a divorce on the ground of cruel and inhuman treatment, and dismissed defendant’s counterclaim for divorce on the same grounds. Judgment affirmed, without costs or disbursements. The finding of fact contained in paragraph “fifth (b)” of the trial court’s findings is reversed. The finding of fact which we have reversed was an allegation contained in plaintiff’s complaint and denied in defendant’s answer. No testimony on this issue was adduced by either party at trial. There was, therefore, no evidence on which the trial court could have based this finding. The remaining findings of fact and conclusions of law are amply supported by the evidence and the decision constituted a proper exercise of discretion. Damiani, J. P., Mangano, Gulotta and O’Connor, JJ., concur.