Gunn v. Gunn
| Decision Date | 19 September 1988 |
| Citation | 532 N.Y.S.2d 556,143 A.D.2d 393 |
| Parties | Charles GUNN, Appellant, v. Ingegerd GUNN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Denis A. Weinstock, Garden City, for appellant.
Yellon & Fanelli, Mineola (Herman Yellon, of counsel), for respondent.
Before MANGANO, J.P., and THOMPSON, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Brucia, J.), dated March 24, 1987, which, inter alia, (1) dismissed his cause of action for a divorce on the ground of the defendant wife's constructive abandonment of him, upon the wife's motion made after the close of the plaintiff's evidence at a nonjury trial on this cause of action only, and (2) after a nonjury trial on the wife's counterclaims (a) awarded the wife maintenance in the sum of $140 per week commencing February 21, 1986, and continuing until the wife remarries, (b) awarded the wife child support in the sum of $70 per week for each of the parties' two infant issue, for a total sum of $140 per week commencing January 21, 1987, until each child reaches the age of 21 years or is otherwise emancipated, and (c) awarded the wife the sum of $5,000 in counsel fees.
ORDERED that the judgment is modified, by deleting the first decretal paragraph thereof and substituting therefor a provisi denying the defendant's motion to dismiss the plaintiff's cause of action for a divorce on the ground of constructive abandonment; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the husband's cause of action for a divorce on the ground of constructive abandonment.
The parties were married in Sweden on November 8, 1969, and have two children, Michelle, born March 6, 1971, and William, born October 19, 1972. The defendant wife was born in Sweden on November 7, 1943, and the plaintiff husband, an American citizen, was born on March 5, 1947. Since 1978 the parties have resided in Nassau County. They purchased a one-family house in October 1982, located in Uniondale. The husband vacated the marital residence in May 1985 and on June 19, 1985 commenced this action for a divorce. In his complaint, the husband alleged, inter alia, that commencing in 1983 and continuing to the time of the complaint, the wife physically abandoned him and unjustifiably refused to live with him as man and wife and to continue her marital duties, without his consent and despite his repeated requests. The wife interposed an answer generally denying the husband's allegations and asserting counterclaims, inter alia, for maintenance, child support, and counsel fees. In August 1985 the wife left the marital home and moved with her children to an apartment in Baldwin. During the course of the proceedings, on February 20, 1986, pursuant to a stipulation of the parties, the marital residence was sold.
Previously, by order dated October 1, 1985, the court granted the wife's motion for pendente lite relief, directing the husband, inter alia, (1) to pay the carrying costs on the marital residence pending its sale, as well as a total sum of $75 per week to the wife as child support; and (2) following the sale of the marital premises, to pay the wife $100 per week child support, and, in addition, $75 per week in maintenance.
Separate trials were held on the husband's cause of action for divorce, and on the wife's counterclaims. At the close of the husband's evidence on the claim of constructive abandonment, the court granted the wife's motion for a dismissal of the husband's cause of action. Thereafter, prior to the trial on the wife's counterclaims, on October 31, 1985, a stipulation of the parties was read into the record whereby, inter alia, the husband agreed to pay the wife $115 per week in child support commencing November 1, 1985, and continuing until the trial of the wife's counterclaims, which commenced on August 27, 1986.
On this appeal, the husband challenges the court's dismissal of his cause of action for divorce, and the awards to the wife of maintenance, arrears of maintenance to the date of the sale of the marital residence, child support, and certain counsel fees.
We find that the court improvidently exercised its discretion in dismissing the husband's cause of action for a divorce based upon constructive abandonment. The husband presented a prima facie case based upon his unrefuted...
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