Di Bella v. Di Bella, 48 N.Y.2d 790 (1979)

An appellate court will not consider constitutional arguments raised for the first time on appeal, especially when the Attorney General has not been notified as required by statute, and factual determinations regarding alimony and counsel fees are outside the scope of appellate review.

Summary

In a divorce proceeding, the husband appealed the alimony and counsel fee awards, arguing that they were excessive and that sections of the Domestic Relations Law were unconstitutional in light of the Supreme Court’s decision in Orr v. Orr. The New York Court of Appeals affirmed the Appellate Division’s order, holding that there was no basis in the record to eliminate alimony in futuro, and that the constitutional argument was not properly preserved for review as it was not raised in the trial court and the Attorney General was not notified. The court also stated that factual determinations regarding the alimony and counsel fees were outside its scope of review.

Facts

The husband and wife were involved in a divorce proceeding. The trial court granted the wife a divorce and awarded her alimony and counsel fees. The husband appealed, contending that the alimony award was excessive and that certain sections of the Domestic Relations Law were unconstitutional. The husband asserted he was unable to attend a scheduled hearing, but the court proceeded. The trial was conducted in two stages based on counsel agreement: first, entitlement to divorce, second, entitlement to alimony.

Procedural History

The trial court granted the wife a divorce and awarded alimony and counsel fees. The husband appealed to the Appellate Division, which affirmed the trial court’s decision. The husband then appealed to the New York Court of Appeals. The Appellate Division did not address the constitutional arguments raised by the husband. (71 AD2d 625)

Issue(s)

1. Whether the Appellate Division erred in determining there was no basis to eliminate alimony in futuro.
2. Whether the trial court erred in denying the husband’s request for an adjournment.
3. Whether the awards of alimony and counsel fees were excessive.
4. Whether sections 236 and 237 of the Domestic Relations Law are unconstitutional.

Holding

1. No, because the Appellate Division correctly determined that the record lacked a basis for eliminating alimony in futuro.
2. No, because the husband had ample opportunity to respond to the testimony and the hearing date had been previously set without objection.
3. The Court of Appeals does not address this as such issues are outside the scope of review.
4. No, because the constitutional issue was not raised in the trial court, and the Attorney General was not notified, precluding review by the Court of Appeals.

Court’s Reasoning

The Court of Appeals affirmed the Appellate Division’s order. Regarding alimony, the court found no error in the determination that there was no basis to eliminate alimony in futuro based on the record. As to the adjournment request, the court noted that the husband had ample opportunity to respond to testimony. The court declined to review the excessiveness of alimony and counsel fee awards, stating these were factual issues outside the scope of its review.

Critically, the court refused to consider the constitutional challenge to the Domestic Relations Law. It emphasized that the issue was not raised in the trial court. Moreover, although the husband claimed to have raised it in the Appellate Division, he failed to notify the Attorney General as required by CPLR 1012(b) and Executive Law § 71. The court stated, “In this circumstance the constitutional arguments will not be considered in our court.” This is consistent with the general principle that appellate courts will not consider issues raised for the first time on appeal.