Aborn v. Aborn

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: Aborn v. Aborn, 601 N.Y.S.2d 339, 196 A.D.2d 561 (N.Y. App. Div. 1993)
• Decision Date: 16 August 1993
• Parties: Allyson ABORN, Respondent-Appellant, v. Peter S. ABORN, Appellant-Respondent.

Page 339

601 N.Y.S.2d 339

196 A.D.2d 561

Allyson ABORN, Respondent-Appellant, v. Peter S. ABORN, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 16, 1993.

Alan D. Scheinkman, White Plains (Michael Kosan, of counsel), for appellant-respondent.

Howard J. Pobiner, White Plains, for respondent-appellant.

Before SULLIVAN, J.P., and BALLETTA, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, (1) the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered May 14, 1992, which, after a nonjury trial, inter alia, (a) directed him to pay child support in the amount of $400 per week, (b) awarded maintenance to the wife in the amount of $225 per week for a period of 10 years, (c) treated the husband's dental license as marital property for the purpose of equitable distribution, (d) awarded the wife a distributive award in the sum of $165,530.50, to be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, (e) awarded the wife counsel fees in the sum of $62,500, to be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and (f) awarded the wife's expert's fees of $1,500, and (2) the plaintiff wife appeals from so much of (a) an order of the same court, entered November 16, 1992, as denied that branch of her motion which was for an award of appellate counsel fees without prejudice to renewal before this court, and (b) an order of the same court entered December 11, 1992, as, upon reargument, adhered to the prior determination regarding appellate counsel fees.

ORDERED that the judgment is modified, on the law and the facts, (1) by deleting therefrom the provision awarding maintenance to the wife in the sum of $225 per week for a period of 10 years, and by substituting therefor a provision awarding maintenance to the wife in the sum of $150 per week for a period of seven years, (2) by deleting therefrom the provision requiring that the distributive award of $165,530.50 shall be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and by substituting therefor a provision requiring that the distributive award of $165,530.50 shall be paid in installments of $500 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and (3) by deleting therefrom the provision requiring that the award of $62,500 as and for counsel fees shall be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and by substituting therefor a provision requiring that the award of $62,500 as and for counsel fees shall be paid in installments of $500 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged; as so modified, the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from the order entered November 16, 1992, is dismissed, as that order was superseded by the order entered December 11, 1992, made upon reargument; and it is further,

ORDERED that the order entered December 11, 1992, is reversed insofar as appealed from, on the law, so much of the order entered November 16, 1992, as denied that branch of the wife's motion for an award of appellate counsel fees is vacated, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and determination on the wife's request for an award of appellate counsel fees; and it is further,

ORDERED that the plaintiff wife is awarded one bill of costs.

The husband contends that the Supreme Court failed to comply with Domestic Relations Law § 236(B)(5)(g) by not making independent findings after trial. We do not agree. From our review of the record, we are satisfied that the statutory factors were considered by the Supreme Court and that its decision was not a verbatim adoption of the findings of fact which were submitted by the wife (see, Schammel v. Schammel, 161 A.D.2d 407, 555 N.Y.S.2d 336).

Additionally, we discern no error in the trial court's award of child support. The Child Support Standards Act requires that a formula be applied to statutorily-defined income to calculate the basic child support obligation and to apportion the pro rata share to be paid by a noncustodial parent, unless the court finds that such amount is unjust...