Gluck v. Gluck

• Decision Date: 02 November 1987
• Citation: 520 N.Y.S.2d 581,134 A.D.2d 237
• Parties: Marlene GLUCK, Respondent-Appellant, v. Emanuel GLUCK, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 581

520 N.Y.S.2d 581

134 A.D.2d 237

Marlene GLUCK, Respondent-Appellant, v. Emanuel GLUCK, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1987.

Moore, Wohl & Newman, P.C., New York City (Louis I. Newman and Gary M. Gash, of counsel), for appellant-respondent.

Harold A. Seidenberg, Nyack (Walter Sevastian, on the brief), for respondent-appellant.

Before THOMPSON, J.P., and WEINSTEIN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, (1) the defendant husband appeals, (a) as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Rockland County (Meehan, J.), dated March 18, 1986, as directed him to pay maintenance of $200 per week for five years and child support of $150 per week, to maintain life insurance for his daughter and son for five years, respectively, and to maintain health benefits for his son, directed a distribution of the marital assets, and granted the plaintiff wife a first option to purchase the marital residence; (b) from an order of the same court, dated May 29, 1986, which, after a hearing, directed him to pay one half of the plaintiff's attorney's fees and expenses, in the amount of $9,192.21, and (c) from an order of the same court, dated September 18, 1986, which, inter alia, set the value of the marital residence at $190,000, and (2) the plaintiff wife cross appeals from so much of the judgment of divorce, as (a) awarded her maintenance of only $200 per week for a period of only five years, and child support of only $150 per week, (b) awarded her only a 35% share of the defendant's pension and annuities, and (c) refused to direct the defendant to pay for the parties' daughter's education.

ORDERED that the judgment is modified, on the law and the facts, by (1) deleting the sixth decretal paragraph thereof, (2) deleting from the eighth decretal paragraph thereof the words "ten (10) consecutive years" and substituting therefor the words "until the age of emancipation", (3) deleting the ninth decretal paragraph thereof, (4) deleting from the fourteenth decretal paragraph thereof the words "Thirty-Three Thousand Five Hundred Twenty-Five and 62/100 ($33,525.62)" and "thirty-five percent (35%)", and substituting therefor, respectively, the words "Thirty-Eight Thousand Seven Hundred Ten ($38,710)" and "forty-nine percent (49%)", (5) deleting from the fifteenth decretal paragraph thereof the words "Nineteen Thousand Nine Hundred Forty-Five and 62/100 ($19,945.62)" and "thirty-five percent (35%)", and substituting therefor the words "Twenty Three Thousand Thirty ($23,030)" and "forty-nine percent (49%)", and (6) deleting from the sixteenth decretal paragraph thereof the words "Two Thousand Fifty-Six and 42/100 ($2,056.42)" and substituting therefor the words "Four Thousand One-Hundred Twelve and 56/100 ($4,112.56)"; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated May 29, 1986, is affirmed, without costs or disbursements; and it is further,

ORDERED that the order dated September 18, 1986, is affirmed, without costs or disbursements.

The court properly concluded that the plaintiff was entitled to $200 per week in maintenance for a period of five years and $150 per week in child support. It was improper, however, for the court to credit the defendant in the amount of $10 per week for every $1,000 earned by the parties' son. This court has expressed an unwillingness to uphold comparable escalation provisions, holding, instead, that such issues are best left to modification proceedings (see, e.g., Breen v. Breen, 99 A.D.2d 539, 540, 471 N.Y.S.2d 617).

We further conclude that it was error for the court to direct the defendant to maintain a life insurance policy for the parties' daughter, who attained the age of 21 approximately three months subsequent to the trial. Such special relief provided for in Domestic Relations Law § 236(B)(8) clearly does not apply to an emancipated son or daughter (see, West v. West, 115 A.D.2d 539, 540, 496 N.Y.S.2d 62). It was also error, therefore, for the court to direct the defendant to maintain a life insurance policy for the duration of 10 years for the parties' son Jeffrey, who was 15 years old at the time of trial. Pursuant to Domestic Relations Law § 236(B)(8), the obligation to maintain life insurance ceases simultaneously with the obligation to provide child support.

The trial court incorrectly calculated that portion of the defendant's retirement benefits representing marital property at 90%. Pursuant to the equation provided for in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15, we conclude that 98% of the present benefits constitute marital property. In addition, based upon the parties' marriage of 22 years and their equal contributions thereto, we further conclude that the plaintiff was...