
    James H. Witherspoon, Respondent, v Paulette Witherspoon, Appellant.
    [726 NYS2d 330]
   —Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in-accordance with the following Memorandum: Supreme Court properly granted plaintiff a divorce on the ground of cruel and inhuman treatment. “The determination of the trial court as fact finder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal” (Zack v Zack, 183 AD2d 382, 385; see, Forcucci v Forcucci, 96 AD2d 751), and we see no reason to do so here. We agree with defendant, however, that this judgment is not a “final Judgment.” The court expressly stated at the conclusion of the testimony herein that a hearing on the financial issues, had to be scheduled. We therefore modify the judgment accordingly, and we remit the matter to Supreme Court for a hearing on the financial issues raised herein. (Appeal from Judgment of Supreme Court, Erie County, Glownia, J. — Matrimonial.) Present — Pigott, Jr., P. J., Green, Hayes, Kehoe and Bums, JJ.  