Opinion
November 27, 1967
In an action for separation, in which the plaintiff wife had obtained a judgment of separation, dated April 2, 1964, defendant appeals from so much of an order of the Supreme Court, Nassau County, dated April 7, 1967, as (1) directed (a) that defendant pay the bills for psychiatric treatment rendered to a son of the marriage by a psychiatrist prior to March 7, 1967, the date of the decision upon which the order was made; (b) that defendant pay certain bills for medical and dental care and for emergency treatment in a hospital; (c) that, to the extent that said bills had already been paid by plaintiff, reimbursement should be made to her, and that otherwise payment should be made directly to the respective doctors and to the hospital; and (d) that defendant pay $1,250 as a counsel fee; and (2) denied defendant's cross motion to modify the judgment so as to (a) place his eldest son in his custody and (b) direct that the marital home, owned by the parties as tenants by the entirety, be sold and the net proceeds of the sale divided between the parties subject to such directions as the court might make for the utilization of both parties' shares of the net proceeds for the benefit of the children of the marriage. Order modified, on the law and the facts and in the exercise of discretion, by striking out the last sentence of the third ordering paragraph, the items in the fourth ordering paragraph insofar as appealed from and the sixth ordering paragraph. As so modified, ordered affirmed, without costs. In our opinion, taking into consideration the fact that the separation judgment had awarded plaintiff $16,000 a year as alimony plus $10,000 a year for the education, support and maintenance of the three children, the disputed items of medical and dental care which the order under review directed defendant to pay were not, within the purview of the judgment, for "extraordinary medical and dental care and treatment of the plaintiff and the children including but not limited to surgery, prolonged hospitalization, or orthodontia". The items being not within the purview of the judgment, it was improper to disregard the limitations in the judgment with respect to past expenditures ( Rexer v. Rexer, 18 A.D.2d 935; Karminski v. Karminski, 260 App. Div. 491). It was improper to direct that $1,110 be paid to or for the psychiatrist for treatment rendered prior to March 7, 1967, the date of the decision. No request for such relief was made in the notice of motion, defendant was not given the opportunity to fully litigate that issue (see, e.g., 2 Carmody-Wait 2d, N.Y. Practice, § 8:70; Matter of Weeks v. Coe, 111 App. Div. 337, 338) and the direction was one to pay for past expenditures. It was not error to award a counsel fee (Domestic Relations Law, §§ 240, 238, 237, subd. [b]; see McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law, § 237, Practice Commentary, p. 292, 2d par.; Zahler v. Zahler, 28 A.D.2d 925; Matter of Berlin v. Berlin, 28 A.D.2d 877; Friou v. Gentes, 11 A.D.2d 124, 126); nor may it be held that the award was excessive. The record did not support a conclusion that custody of the eldest son should be taken from plaintiff and awarded to defendant. We have also given due consideration to (1) the fact that the provision in the judgment awarding a total of $26,000 annually to plaintiff as alimony and for the education, maintenance and support of the children stipulated that this total award shall be inclusive of principal and interest charges on the mortgage, real estate taxes and insurance for the marital home and (2) the further fact that, while the money judgment obtained against plaintiff on April 16, 1965 by another party in a different action, although prejudicial to defendant (see First Fed. Sav. Loan Assn. of N.Y. v. Lewis, 14 A.D.2d 150, 154; Bazzini Co. v. Cappelini, 282 App. Div 705), was obtained subsequent to the entry of the judgment in this separation action, it arose from commercial matters extant prior to the entry of the judgment in this separation action. Nevertheless, in our opinion it was not an improvident exercise of discretion to deny defendant's application for a modification of the judgment so as to direct a sale of the premises and a division of the proceeds of the sale (cf. Zahler v. Zahler, 28 A.D.2d 925, supra). Christ, Acting P.J., Brennan, Hopkins and Munder, JJ., concur.