Tumolillo v. Tumolillo

51 N.Y.2d 790 (1980)

Robert Tumolillo, Appellant, v. Mercedes Tumolillo, Respondent.

Court of Appeals of the State of New York.

Argued September 3, 1980.

Decided October 7, 1980.

Sidney Siller for appellant.

Marjory D. Fields, John C. Gray, Jr., Natalie Albert and Karin Goldman for respondent.

Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), intervenor pro se.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

*791MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

We have examined those contentions of appellant husband which are available on this appeal and find them to be without merit. In the first place the Appellate Division did not hold as a matter of law that the termination of alimony in futuro is always beyond the power of the divorce court, a proposition on which we express no view; it held only that as a matter of law "[t]here is no basis in the record [in this case] for the elimination of alimony in futuro", a determination with which we agree. Nor was it error to deny the husband's request for an adjournment because of his asserted inability to be in court on a date which had previously been set for further hearing without objection on his part. Additionally, ample opportunity was afforded him to respond to the testimony received that day. Similarly, he cannot now be heard to complain that the trial court, in accordance with the express agreement of counsel for both parties, conducted the trial in two stages, first as to the wife's entitlement to a divorce and second as to her entitlement to alimony (cf. CPLR 603). Finally, the husband's assertions that the awards of alimony and counsel fees were excessive present issues of fact only which lie outside the scope of our review.

We do not consider the husband's contentions that sections 236 and 237 of the Domestic Relations Law are unconstitutional in light of the decision of the United States Supreme Court in Orr v Orr (440 US 268). This issue was not raised in *792 the trial court. While we are told that it was raised by the husband in the Appellate Division, no notice thereof was then given the Attorney-General (CPLR 1012, subd [b]; Executive Law, § 71), nor did the Appellate Division entertain or address the husband's constitutional contentions (71 AD2d 625). In this circumstance the constitutional arguments will not be considered in our court (Di Bella v Di Bella, 47 N.Y.2d 828).

Order affirmed.