Gardner v. Gardner

In an action for divorce, the defendant husband appeals from (1) an order of the Supreme Court, Dutchess County, dated June 11,1974, which denied his motion to amend his answer, and (2) a judgment of the same court, dated September 30, 1974, which, inter alia, granted plaintiff a divorce. Order and judgment affirmed, with one bill of costs to cover both appeals. On the record on these appeals, it was a proper exercise of discretion for the Trial Justice to deny defendant leave to serve an amended answer with a counterclaim for divorce on the eve of trial, to limit cross-examination of plaintiff and to exclude testimony on defendant’s behalf with respect to the proposed counterclaim. Further, the trial court’s findings with respect to 12 of the 14 charges of cruelty are amply supported by the evidence. The awards for alimony and child support and the direction that the marital premises be sold and the net proceeds divided equally between the parties were also within proper exercise of the trial court’s discretion under the circumstances. Martuscello, Acting P. J., Latham, Cohalan, Margett and Brennan, JJ., concur.