Opinion
September 21, 1984
Appeal from the Supreme Court, Oneida County, Sullivan, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and O'Donnell, JJ.
Judgment unanimously modified, on the law and facts, and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Oneida County, for further proceedings, in accordance with the following memorandum: The record supports the court's determination granting plaintiff a divorce on the grounds of cruel and inhuman treatment. Contrary to the mandatory language of the Domestic Relations Law (§ 236, part B, subd. 5, par g; subd 7, par b), however, the court failed to set forth the factors it considered in awarding child support and distributing the marital property (see Kobylack v Kobylack, 62 N.Y.2d 399; Gainer v Gainer, 100 A.D.2d 533; Paolini v Paolini, 99 A.D.2d 742; Nielsen v Nielsen, 91 A.D.2d 1016). It failed, also, to make sufficient findings of fact to support its conclusions concerning those awards (see CPLR 4213, subd. [b]; Zaransky v Zaransky, 79 A.D.2d 989; Mastin v Village of Lima, 77 A.D.2d 786, 787). The award of $150 for child support alone cannot be sustained since the needs of the wife and the child were not separately stated and no finding was made as to the earning capacity of the husband (see Kay v Kay, 37 N.Y.2d 632). The matter is remitted to the trial court for a statement of the factors considered and for further findings. On remand, the court may wish to reconsider the issues of maintenance and child support and take further proof if necessary.
The judgment directs that in the event the husband declares bankruptcy, the husband shall remain personally liable on the joint obligations of the husband-wife. This direction is deleted from the judgment since the court has no right to interfere with the function of the Bankruptcy Court. It may, however, as an award of maintenance not subject to discharge in bankruptcy, direct that the spouse pay the joint obligations of both ( Nesbit v Nesbit, 80 N.M. 294; Collins v Smith, 26 Ohio Misc. 231; Erickson v Beardall, 20 Utah 2d 287). On remittitur, the court may reconsider this issue also.