Jones v. Jones

• Decision Date: 24 August 1987
• Citation: Jones v. Jones, 519 N.Y.S.2d 22, 133 A.D.2d 217 (N.Y. App. Div. 1987)
• Parties: Andrew M. JONES, Appellant, v. Barbara JONES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 22

519 N.Y.S.2d 22

133 A.D.2d 217

Andrew M. JONES, Appellant, v.Barbara JONES, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 24, 1987.

Leonard E. Lombardi, Pleasantville, for appellant.

E. Robert Giuntini, P.C., White Plains, for respondent.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and HARWOOD, 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, Westchester County(Delaney, J.), entered February 27, 1986, which, inter alia, (1) granted the defendant wife a divorce on the grounds of cruel and inhuman treatment and abandonment, (2) awarded the defendant wife maintenance of $190 per week and distributed to her a percentage of the plaintiff husband's pension, (3) ordered the plaintiff husband to provide for the support of the parties' child, and (4) awarded the defendant wife's counsel $8998.20 in fees.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by reducing the amount of counsel fees to $4,125 plus $248.20 as disbursements and by adding a provision that the plaintiff husband may, upon his retirement, apply to the Supreme Court, Westchester County, for a reduction or elimination of his maintenance obligation, depending upon his financial circumstances at that time; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant wife, and the plaintiff's time to pay the counsel fees and $248.20 in disbursements is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

The parties were married on August 30, 1958 and have one child, born on December 3, 1966.In the early part of 1982, the plaintiff husband moved out of the marital residence.In October 1983he commenced this action for divorce; the defendant wife counterclaimed for divorce on the grounds of abandonment and cruel and inhuman treatment.

In 1984, the parties sold the marital residence and divided the net proceeds equally, each receiving approximately $40,000.The plaintiff husband bought a home with his paramour which was worth approximately $300,000.The defendant wife bought an apartment in Co-op City, in the Bronx.

At the trial in December 1985 and January 1986, the plaintiff husband withdrew his complaint and his reply to the counterclaim, and upon the defendant wife's testimony, she was granted a divorce on the grounds of abandonment and cruel and inhuman treatment.The defendant wife was 50 years old at the time of trial (the plaintiff husband was 51 years old), and she had a high school diploma.Until her father's death in 1974, she was employed steadily, except for a five-year period while she was pregnant with and after the birth of her child.She then became ill after her father's death and required psychiatric treatment which continued to the time of trial, and included some hospitalization.In that 11-year period, she was unable to hold a job for more than two years, and her efforts to learn new work skills were unavailing.

At the time of the trial, the parties' daughter was attending college and the plaintiff husband had voluntarily assumed the responsibility for her tuition, room and board.We sustain the trial court's direction that he continue to do so, but, of course, it is noted that his legal obligation in that regard will terminate in December 1987.

The plaintiff husband had worked for the New York City Board of Education for about 28 years and was at the time of trial, a school principal receiving an annual salary of approximately...