Crane v. Crane

• Decision Date: 20 September 1999
• Parties: Eric CRANE, respondent, v. Maria CRANE, appellant.
• Court: New York Supreme Court — Appellate Division

Page 763

694 N.Y.S.2d 763

Eric CRANE, respondent, v. Maria CRANE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 20, 1999.

Abraham Hecht, Forest Hills, N.Y., for appellant.

Eric Crane, Flushing, N.Y., respondent pro se.

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Queens County (Gartenstein, J.H.O.), dated June 4, 1998, which, after a nonjury trial, inter alia, (1) granted the plaintiff husband the right to make all decisions regarding the health, education, welfare, and general care of the parties' children, (2) established a visitation schedule which permits the husband to have four weeks of consecutive summer visitation with the children commencing in the year 2000, (3) directed the immediate sale of the former marital residence in Whitestone, (4) prohibited her from relocating with the children to any area outside of the Whitestone section of Queens or adjacent portions of Queens County, (5) denied her application for maintenance, (6) directed that the husband be reimbursed from the proceeds of the sale of marital property for debts incurred in satisfying his pendente lite support obligations, and (7) denied her application to make the award of child support retroactive to the date upon which such support was first requested.

ORDERED that the judgment is modified by (1) deleting from the second decretal paragraph thereof the phrase "however, the Plaintiff, father shall have the right to", and substituting therefor the phrase, "the parties shall consult and jointly", (2) deleting from the second decretal paragraph thereof the provision beginning with the words "This order specifically includes the father's sole right" and ending with the words "forthwith change of custody", (3) deleting from section 7 of the fourth decretal paragraph thereof the sentence beginning with the words "However, in the event" and ending with the words "decision-making authority", (4) deleting sections 1(A), (B), (C), (D), and (E) of the ninth decretal paragraph thereof, and substituting therefor a provision directing that the parties' property at 36-18 Utopia Parkway, Flushing, New York, be sold as expeditiously as possible, and further providing that: (a) from the date of the judgment, each party shall be responsible for paying one half of the carrying charges for the property located at 36-18 Utopia Parkway, consisting of the mortgage, real estate taxes, insurance, and utilities, to the extent that such expenses exceed rental income obtained from the premises, (b) upon the sale of the property located at 36-18 Utopia Parkway, there shall first be deducted all sums necessary to satisfy the outstanding mortgage on the premises, real estate commissions, customary expenses or adjustments customarily paid for by sellers, including capital gains taxes, and any outstanding utility bills for the premises, and (c) after the aforesaid expenses are deducted, the sum of $33,200 shall be paid to the father, and the remaining net proceeds of the sale shall be equally divided between the parties, (5) adding thereto a provision awarding the mother exclusive occupancy of the former marital residence located at 13-24 142nd Street, Whitestone, New York, until the parties' youngest child reaches the age of 18, and directing that during this period of exclusive occupancy, the mother be responsible for paying the first mortgage, real estate taxes, insurance and utilities for the Whitestone residence, (6) adding thereto a provision directing the father to make all payments required under the parties' Marine Midland Bank home equity credit line, (7) deleting the seventh decretal paragraph thereof, and substituting therefor a provision awarding the mother child support retroactive to the date of her pendente lite application for such support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a calculation of retroactive child support in accordance herewith, taking into account the actual payments made by the father, and the appropriate allocation between temporary maintenance and child support, and for entry of an appropriate amended judgment.

The parties in this action were married in 1979 and have a nine-year-old daughter and a seven-year-old son. After trial, the Supreme Court awarded the mother custody of the parties' children, but gave the father the right to "make all decisions in connection with the health, education, welfare and general care and raising of the children", including the right to select their doctors, schools, and summer camps. The mother contends...