Breen v. Breen

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MANGANO; MANGANO
• Citation: Breen v. Breen, 471 N.Y.S.2d 617, 99 A.D.2d 539 (N.Y. App. Div. 1984)
• Decision Date: 30 January 1984
• Parties: Diane BREEN, Appellant-Respondent v. Robert BREEN, Respondent-Appellant.

Page 617

471 N.Y.S.2d 617

99 A.D.2d 539

Diane BREEN, Appellant-Respondent v. Robert BREEN, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 30, 1984.

David M. Markowitz, New York City (Conrad F. Ferrigno, New York City, of counsel), for appellant-respondent.

Arthur L. Diamond, Maspeth, for respondent-appellant.

Before MANGANO, J.P., and O'CONNOR, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff wife appeals, as limited by her notice of appeal and brief, (1) from so much of an order of the Supreme Court, Queens County, dated January 5, 1982, as granted defendant husband leave to renew his motion to vacate his default, (2) from an order of the same court entered May 7, 1982, which vacated defendant's default in appearing for trial in this action, (3) from stated portions of a judgment of the same court, dated November 16, 1982, which, inter alia, granted the parties a judgment of divorce, directed that in the event plaintiff did not exercise an option to buy out defendant's one-half interest in the parties' co-operative apartment by December 31, 1983, the apartment would be put up for sale, and limited plaintiff's award of child support to $50 per week plus 10% of any gross amount of salary earned by defendant in excess of his present base salary, and defendant cross-appeals, as limited by his brief, from stated portions of the judgment.

Appeals from the orders dismissed, without costs or disbursements (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 284, 347 N.E.2d 647).

Judgment modified, on the law and as a matter of discretion, by (1) deleting that part of the fourth decretal paragraph which directs defendant to pay as child support an additional 10% of any gross amount of salary in excess of his present base salary, (2) deleting that part of the sixth decretal paragraph which directs defendant to maintain any life insurance, upon condition that defendant's attorney personally pay plaintiff the sum of $500. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. Defendant's attorney's time to comply with the condition is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry. In the event the condition is not complied with, judgment affirmed insofar as appealed from, with costs.

Although it was a proper exercise of the trial court's discretion in this pre-equitable distribution case to direct the husband to maintain his existing health and hospitalization insurance for the benefit of his son, the court was without authority to direct the husband to maintain life insurance with his child as beneficiary (Gordon v. Gordon, 71 A.D.2d 911, 419 N.Y.S.2d 749; see, also, Enos v. Enos, 41 A.D.2d 642, 340 N.Y.S.2d 783; Ehrler v. Ehrler, 69 Misc.2d 234, 328 N.Y.S.2d 728). Accordingly, that portion of the judgment must be deleted. We further strike from the judgment the escalation clause directing the defendant to pay as child support an additional 10% of any gross amount of salary he earns in excess of his base salary at the time of judgment, since we have consistently held that directions to increase child support payments are best left to modification proceedings (Gallo v. Gallo, 50 A.D.2d 830, ...