Blauner v. Blauner

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MURPHY
• Citation: Blauner v. Blauner, 60 A.D.2d 215, 400 N.Y.S.2d 335 (N.Y. App. Div. 1977)
• Decision Date: 27 December 1977
• Parties: Sheila BLAUNER, Plaintiff-Respondent, v. Richard BLAUNER, Defendant-Appellant.

Page 335

400 N.Y.S.2d 335

60 A.D.2d 215

Sheila BLAUNER, Plaintiff-Respondent, v. Richard BLAUNER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 27, 1977.

Thomas A. Andrews, New York City, of counsel (William A. Shea, New York City, with him on the brief; Shea, Gould, Climenko & Casey, New York City, attys.), for plaintiff-respondent.

Joel R. Brandes, New York City, of counsel (Lester Wallman and Joel R. Brandes, New York City, with him on the brief; Wallman & Kramer, New York City, attys.), for defendant-appellant.

Before MURPHY, P. J., and LUPIANO, BIRNS and LANE, JJ.

MURPHY, Presiding Justice.

The parties in this divorce action were married in 1954. There are three children of the marriage, the oldest of whom is now twenty-one years of age. In the late sixties and early seventies, the parties' standard of living was in the area of $150,000 per year. During those years, the defendant's income from his firm was well over $100,000 per year. Due to business reversals, the defendant was forced to liquidate his firm in 1972. Before that liquidation occurred, the defendant apparently defrauded his factor of about $180,000. There is no real dispute as to the fact that the defendant's personal debts now total over $300,000. This Court is not unaware of the fact that a sizeable portion of that debt is owed to the defendant's father, who has in the past, often chosen to assist the defendant financially. He is presently employed by his father's firm at a salary of $41,600 per year. Defendant claims current expenses of about $4,200 per month and income of $3,200 per month. As part of his expenses, defendant is required to pay and has paid alimony and child support of $20,500 per year under a judgment of separation upheld by our Court (52 A.D.2d 786, 383 N.Y.S.2d 26). Through gift and inheritance, the record also indicates that the plaintiff's assets are worth about $475,000.

In this consolidated proceeding, both parties sought a conversion divorce under D R L § 170, subd. (5). However, the trial Court only granted a judgment of divorce to the plaintiff. Since the defendant also lived apart from his wife for more than a year and substantially performed all the terms and conditions of the judgment of separation, he should have also been awarded a judgment of divorce under this "no fault" subsection.

The Court below, in the conversion action, was privileged to consider the question of alimony de novo. (Kover v. Kover, 29 N.Y.2d 408, 413, 328 N.Y.S.2d 641, 643, 278 N.E.2d 886, 887). It follows that the Court could also consider, de novo, the question of child support.

The trial Court found, as contended by plaintiff, that the defendant's due income necessarily exceeded his admitted income of $41,000 per year because of his continuing high standard of living. Despite the plaintiff's suspicions in this regard, the evidence adduced at trial was insufficient to support a finding that the defendant's income exceeded $41,000 per year. Taking into account the plaintiff's wealth, the defendant's debt, the best interests of the children and all other relevant factors (Kover v. Kover, supra; Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791; Stern v. Stern, App.Div., 399 N.Y.S.2d 125, we find no reason for diverging from the support provision of $20,500 as set in the judgment of separation. Since the defendant will continue to make the same support payments under this judgment it is unnecessary to reach the issue of retroactivity. Nonetheless, even if we had increased support payments, such payments would not have been enforced retroactively because the defendant had fully complied with the support provision in the judgment of separation.

It is true, as defendant maintains, that the plaintiff should not have been awarded custody of the oldest child, twenty years of age on the date judgment was entered. (Silverman v. Silverman, 50 A.D.2d 824, 376 N.Y.S.2d 182). However, defendant has not appealed from that portion of the judgment awarding custody of the children to the plaintiff. Hence, we do not disturb that decretal paragraph in the judgment.

Defendant further alleges that, in view of the fact that the plaintiff was not entitled to the custody of the oldest child, support payments for that child should not have been made to the...