Friedenberg v. Friedenberg

• Decision Date: 19 January 1988
• Citation: 523 N.Y.S.2d 578,136 A.D.2d 593
• Parties: Pinhas FRIEDENBERG, Respondent-Appellant, v. Helena FRIEDENBERG a/k/a Helena Rosenwasser, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 578

523 N.Y.S.2d 578

136 A.D.2d 593

Pinhas FRIEDENBERG, Respondent-Appellant, v. Helena FRIEDENBERG a/k/a Helena Rosenwasser, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 19, 1988.

Danziger, Bangser, Klipstein, Goldsmith, Greenwald & Weiss, New York City (Robert Bloom, of counsel), for appellant-respondent.

Alter & Alter, P.C., New York City (Stanley Alter, of counsel), for respondent-appellant.

Before LAWRENCE, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her notice of appeal and brief, from so much of a judgment of the Supreme Court, Kings County (Spodek, J.), entered August 27, 1985, as, after a nonjury trial, (1) granted the plaintiff husband a divorce on the ground of cruel and inhuman treatment by the defendant wife; (2) awarded the defendant maintenance of only $75 per week for six months from the date of the signing of the judgment, $50 per week for the next 30 months and $35 per week for the next three years, and child support of only $120 per week except for four summer weeks spent by the child with the plaintiff, until the parties' infant child reaches majority or becomes emancipated; (3) awarded the plaintiff one-half of the defendant's share in the property located at 1746 Ocean Avenue, Brooklyn, amounting to $32,500 with interest from the date of entry of the judgment; (4) awarded the defendant a portion of the plaintiff's pension without determining its value; (5) ordered that the marital residence be sold (a) when the infant child reaches majority or becomes sooner emancipated or (b) if the defendant remarries or shares the marital residence with another person; (6) failed to distribute the plaintiff's life insurance or direct its continuance; (7) held that should the defendant fail to comply with visitation orders or demonstrate an unwillingness to act in the child's best interests, the court would entertain an application for a change of custody; (8) failed to require the plaintiff to comply with Domestic Relations Law § 253; (9) awarded the defendant the sum of only $2,250 for counsel fees; and (10) failed to ascribe any value to the collectibles business of the plaintiff; and cross appeal by the plaintiff from the same judgment.

ORDERED that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the law and the facts and as a matter of discretion, by (1) deleting from the second decretal paragraph thereof all words beginning with the phrase "The marital premises shall be sold" and ending with the phrase "with another person" and substituting therefor: "The marital premises shall be sold if the defendant remarries or when Amanda, the parties' child, is emancipated or reaches her majority, whichever occurs first, and the net proceeds from the sale of the marital home shall be divided as follows: the defendant shall be credited with the amounts paid by her on the mortgage for payments due and owing after August 27, 1985, whereupon the remainder of the proceeds shall be divided between the parties equally"; (2) deleting from the third decretal paragraph thereof the phrase beginning with the words "Should the defendant fail to comply" and ending with the words "an application for a change of custody"; (3) deleting from the eighth decretal paragraph thereof the provision awarding the plaintiff a one-half share of the property located at 1746 Ocean Avenue, with interest, and substituting therefor a provision awarding the plaintiff one-quarter of the defendant's share in said property or $16,250, without interest; (4) deleting from the second subparagraph a of the eighth decretal paragraph thereof the phrase "or residing with someone in said marital residence" and (5) adding a provision thereto directing the plaintiff to serve and file a sworn...