Opinion
April 12, 1990
Appeal from the Supreme Court, New York County (Nathaniel T. Helman, J.H.O.).
On May 12, 1973, the parties were married in New York County. Thereafter, in 1985, plaintiff husband commenced a divorce action against defendant wife. Following the joinder of issue, by order, Supreme Court, New York County, entered on or about March 3, 1987, the matter was referred to a Judicial Hearing Officer (J.H.O.).
When the hearing commenced in June 1987, the family status and economic condition of the respective parties were, as follows:
The parties have three minor children, who are: Christopher, aged 11, Gregory, aged 9, and Lauren, aged 4.
Plaintiff husband is a sergeant in the New York City Police Department, with 14 years' service, and he earns a base pay of $43,000 annually, plus overtime. Also he is superintendent of an apartment building which is located at 114 East 71st Street, Manhattan, and for his services in that capacity, he receives average annual compensation of approximately $2,000, a free two-bedroom basement apartment in that building, free basic telephone service, and free basic Home Box Office service.
During the entire marriage, defendant has been employed as a waitress, barmaid, and, most recently as a manager, and she earns between $200 and $250 weekly from salary and gratuities.
After completion of the hearing, the J.H.O., by judgment entered April 13, 1988, inter alia, awarded defendant one half of the amount of the police pension benefits which plaintiff will receive at age 65, awarded defendant the custody of the minor children, directed plaintiff to pay the monthly rental of an apartment which is to be obtained by the defendant, directed plaintiff to pay the moving expenses to said apartment, directed plaintiff to pay for the installation of fixtures in said apartment, and limited plaintiff's visitation with the children. Plaintiff appeals.
We find that the J.H.O. erred in his pension award to defendant, since it is well-settled law that defendant's 50% interest must be limited to the corpus of the plaintiff's police pension fund which accumulated "between the date of the marriage and the commencement of a matrimonial action, even though the rights are unmatured at the time the action is begun" (Majauskas v. Majauskas, 61 N.Y.2d 481, 486).
Further, we find that the J.H.O. erred in directing plaintiff to pay defendant, when she obtains an apartment, unspecified sums for apartment rental, moving expenses, and the costs of the installation of fixtures in said apartment, since "[s]uch open-ended payments are improper" (Chasnov v. Chasnov, 131 A.D.2d 624, 625). Moreover, we find that the instant open-ended award is subject to potential abuse since, pursuant to same's terms, defendant can rent the most expensive apartment, as well as use the most expensive moving company, and install the most expensive apartment fixtures. Accordingly, we remit the matter to the hearing court "to fix a monetary limitation on these obligations" (Weinstein v. Weinstein, 125 A.D.2d 301, 303).
Our review of the record indicates that the J.H.O. found "that each of the parties has an equal and sincere affection for the children and desires their companionship in every way possible". The Court of Appeals states, in Weiss v. Weiss ( 52 N.Y.2d 170, 175), "[h]ow valuable the mature guiding hand and love of a [noncustodial] parent may be to a child is taught by life itself. This is surely so when the parent-child relationship is carefully nurtured by regular, frequent and welcomed visitation". Based upon the facts herein, and the legal authority supra, we find that the J.H.O. unduly restricted the plaintiff's visitation with his children, and therefore, in the exercise of our discretion, we expand such visitation as set forth in the decretal paragraph.
We have considered the other contentions of the parties, and find them to be without merit.
Accordingly, we modify the judgment, as discussed supra.
Concur — Ross, J.P., Carro, Asch and Rubin, JJ.