Summary
In Gunn v. Gunn (143 A.D.2d 393, 396), we suggested that, where the Supreme Court enters judgment denying matrimonial relief, it is premature to fix a durational limit on any maintenance awarded to one spouse payable by the other.
Summary of this case from Blisko v. BliskoOpinion
September 19, 1988
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the judgment is modified, by deleting the first decretal paragraph thereof and substituting therefor a provision denying the defendant's motion to dismiss the plaintiff's cause of action for a divorce on the ground of constructive abandonment; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the husband's cause of action for a divorce on the ground of constructive abandonment.
The parties were married in Sweden on November 8, 1969, and have two children, Michelle, born March 6, 1971, and William, born October 19, 1972. The defendant wife was born in Sweden on November 7, 1943, and the plaintiff husband, an American citizen, was born on March 5, 1947. Since 1978 the parties have resided in Nassau County. They purchased a one-family house in October 1982, located in Uniondale. The husband vacated the marital residence in May 1985 and on June 19, 1985 commenced this action for a divorce. In his complaint, the husband alleged, inter alia, that commencing in 1983 and continuing to the time of the complaint, the wife physically abandoned him and unjustifiably refused to live with him as man and wife and to continue her marital duties, without his consent and despite his repeated requests. The wife interposed an answer generally denying the husband's allegations and asserting counterclaims, inter alia, for maintenance, child support, and counsel fees. In August 1985 the wife left the marital home and moved with her children to an apartment in Baldwin. During the course of the proceedings, on February 20, 1986, pursuant to a stipulation of the parties, the marital residence was sold.
Previously, by order dated October 1, 1985, the court granted the wife's motion for pendente lite relief, directing the husband, inter alia, (1) to pay the carrying costs on the marital residence pending its sale, as well as a total sum of $75 per week to the wife as child support; and (2) following the sale of the marital premises, to pay the wife $100 per week child support and, in addition, $75 per week in maintenance.
Separate trials were held on the husband's cause of action for divorce, and on the wife's counterclaims. At the close of the husband's evidence on the claim of constructive abandonment, the court granted the wife's motion for a dismissal of the husband's cause of action. Thereafter, prior to the trial on the wife's counterclaims, on October 31, 1985, a stipulation of the parties was read into the record whereby, inter alia, the husband agreed to pay the wife $115 per week in child support commencing November 1, 1985, and continuing until the trial of the wife's counterclaims, which commenced on August 27, 1986.
On this appeal, the husband challenges the court's dismissal of his cause of action for divorce, and the awards to the wife of maintenance, arrears of maintenance to the date of the sale of the marital residence, child support, and certain counsel fees.
We find that the court improvidently exercised its discretion in dismissing the husband's cause of action for a divorce based upon constructive abandonment. The husband presented a prima facie case based upon his unrefuted testimony that commencing in or about March 1983 and continuing until May 1985 when the wife ordered him to leave the marital residence, the wife consistently and without justification or his consent, refused to have sexual relations with him (see, Domestic Relations Law § 170; Schine v Schine, 31 N.Y.2d 113, rearg denied 31 N.Y.2d 805; Nicholson v Nicholson, 87 A.D.2d 645).
Further, we find that the amount of the court's awards of maintenance and child support is reasonable in light of the parties' respective economic circumstances. We note that the determination of the court is based in part on its assessment of the parties' credibility, to which we defer (see, Day v Day, 112 A.D.2d 972). Moreover, the record supports the court's findings that the wife has a fixed, limited income, that she is in need of assistance to meet the expenses for herself and the children, and that the husband has a superior earning capacity not bound by a rigid salary schedule. The court properly determined the amount of maintenance and child support based upon the husband's ability to provide for his wife and children, rather than, as he argues, by his current claimed economic situation (see, e.g., Kay v Kay, 37 N.Y.2d 632, 637; Hickland v Hickland, 39 N.Y.2d 1, rearg denied 39 N.Y.2d 943, cert denied 429 U.S. 941).
With respect to the retroactive award of maintenance, we also find that under the circumstances of this case, the court properly determined that the award of maintenance should be retroactive to the date of sale of the marital residence, February 20, 1986 (Domestic Relations Law § 236 [B] [6] [a]; Khalily v Khalily, 99 A.D.2d 482). As the court pointed out in its memorandum decision, the wife was granted a temporary award of maintenance pursuant to an order dated October 1, 1985, directing the husband to pay the carrying charges on the marital residence pending its sale. Once that obligation ceased, the wife was entitled to receive financial assistance in covering her living expenses (cf., Lobotsky v Lobotsky, 122 A.D.2d 253).
As to the award of $5,000 to the wife for counsel fees, we find that the court properly considered the ability of each of the parties to pay their respective counsel and note that the award was substantially less than the wife requested. We find no basis to conclude that the court improvidently exercised its discretion on this issue (see, Erdheim v Erdheim, 119 A.D.2d 623, lv denied 68 N.Y.2d 607).
As a final note, we observe that the trial court could properly determine the issues of custody, child support, maintenance and attorneys' fees notwithstanding the fact that no judgment was entered dissolving the marriage (see, Naughton v Naughton, 92 A.D.2d 914; Maulella v Maulella, 90 A.D.2d 535, 537; see also, Forbush v Forbush, 115 A.D.2d 335, 337, mot to dismiss appeal granted 67 N.Y.2d 756; Scheinkman, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 14, 1988 Pocket Part, Domestic Relations Law C236B:35, at 20). However, at this juncture, since the parties remain legally married, any issue as to the duration of the maintenance award is not properly before us. Mangano, J.P., Thompson, Lawrence and Eiber, JJ., concur.