Hillmann v. Hillmann

• Decision Date: 11 March 1985
• Citation: 486 N.Y.S.2d 87,109 A.D.2d 777
• Parties: Christine HILLMANN, Respondent-Appellant, v. Richard HILLMANN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 87

486 N.Y.S.2d 87

109 A.D.2d 777

Christine HILLMANN, Respondent-Appellant, v. Richard HILLMANN, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

March 11, 1985.

Stephens & Buderwitz, White Plains (Joseph J. Buderwitz, Jr. and James J. Duggan, White Plains, of counsel), for appellant-respondent.

Cerrato, Sweeney, Cohn, Stahl & Vaccaro, White Plains (Julius W. Cohn, White Plains, of counsel), for respondent-appellant.

Before THOMPSON, J.P., and BRACKEN, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a divorce action, the defendant husband appeals and the plaintiff wife cross-appeals from stated portions of a resettled judgment of the Supreme Court, Westchester County, dated April 29, 1983, which, inter alia, required defendant to pay maintenance for an unlimited period of time and denied plaintiff's application for an award of exclusive occupancy of the marital residence and instead directed that it be sold.

Resettled judgment modified, on the facts, by (1) deleting from the seventh decretal paragraph thereof the word "alimony" and substituting therefor the words "maintenance, for a period of 10 years from the date hereof", and by adding thereto after the words "dental expense" the words "and the cost of extraordinary repairs of the marital residence" and (2) adding to the ninth decretal paragraph thereof after the words "Decreed that", the words "plaintiff is awarded exclusive possession of the marital residence until the youngest child of the parties attains the age of 18 years or is sooner emancipated and thereafter", and by deleting the words "entry of this judgment" therefrom, and substituting therefor the words "said child's 18th birthday or the date of her emancipation, whichever is sooner". As so modified, resettled judgment affirmed insofar as appealed from, without costs or disbursements.

The record of the trial and the decision of Special Term afford a sufficient basis for appellate review of that court's determination of the issues of equitable distribution, maintenance, custody and child support (Damiano v. Damiano, 94 A.D.2d 132, 134, 463 N.Y.S.2d 477; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). Based upon our assessment of the circumstances of the parties, as revealed by the record, in accordance with the factors enumerated in Domestic Relations Law § 236(B)(5)(d), (6)(a), we conclude that modification of the judgment is required in two respects (Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829; Cohen v. Cohen, 104 A.D.2d 841, 843, 480 N.Y.S.2d 358; Duffy v. Duffy, supra ).

First, we believe that Special Term should not have directed defendant husband to pay maintenance for an unlimited period of time. Plaintiff wife is approximately 34 years old, in good health, and the parties' two children, of whom she has custody, are now 11 and 9 years of age, respectively. Prior to the parties' marriage in 1971, plaintiff had graduated from high school and had completed one year of college, wherein she had taken secretarial courses. She had thereafter been employed as a secretary for seven years, both before and during the marriage, until she became pregnant with the parties' first child, who was...