Lea v. Lea
| Decision Date | 03 November 1977 |
| Citation | 59 A.D.2d 277,399 N.Y.S.2d 219 |
| Parties | Lola S. LEA, Plaintiff-Appellant, v. Robert M. LEA, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Diana E. Pinover, New York City, of counsel (Trubin, Sillcocks, Edelman & Knapp, New York City, attys.), for plaintiff-appellant.
Bernard R. Selkowe, New York City (Myron Paul Schamis, New York City, on brief), for defendant-respondent.
Before MURPHY, J. P., and KUPFERMAN, SILVERMAN and CAPOZZOLI, JJ.
In this action for divorce, plaintiff-wife appeals from so much of the judgment granting her a divorce as directs that a certain portion of the equity in the marital residences shall be applied to defendant-husband's child support obligations and that the husband not be required to make any further payments to plaintiff-wife for the support of their child until the child reaches the age of 21, and from so much of said judgment as determines that plaintiff and defendant are joint owners of the stock of a certain corporation largely owned by the wife's family. Defendant-husband filed a cross-notice of appeal essentially from so much of the judgment as determines the difference in the market value of the residences to be $25,000.
There is apparently no dispute between the parties as to the portion of the judgment that grants a divorce and gives the wife custody of their daughter who was born in March, 1964. The issues on this appeal revolve around the provisions for the support of the daughter and related provisions with respect to the equity in the residences of the parties.
Plaintiff-wife currently earns slightly more than twice what the husband earns. The parties owned a residence in Brooklyn and a vacation residence in Massachusetts. The trial court directed that the wife should receive sole title to the residence in Brooklyn at a market value of $60,000, after mortgages; that the husband should receive sole title to the vacation residence in Massachusetts at a market value of $35,000, after mortgages; and the difference in value between the two residences in the sum of $25,000 should be applied by the wife to the husband's child support obligations, and that defendant-husband is not required to make any further payments to plaintiff-wife for the child's support until the child attains the age of 21 years. It is this last provision to which the wife objects.
The husband suggests though the court did not say so that what the court did was to find that the amount needed for the support of the child was $8,350 a year (a figure that the wife had claimed at one time), for the nine years that remained from the time of the judgment until the child's majority, making a total of $75,150; that the court was requiring each party to contribute to the support of the child in the ratio of their earnings, or approximately two-thirds for the wife and one-third for the husband, which would result in an obligation of $25,050 to be borne by the husband, which is substantially the effect of what the court did. While there may be a certain rough justice in this approach, we do not think it appropriate in these circumstances for the reasons we shall discuss. (Incidentally, both parties are in agreement that on the court's assumptions that each party had a one-half equity in the two houses, and that the difference in equities was $25,000, the husband's share of the difference in the equities in the values of the two houses is not the whole difference, $25,000, but only one-half, $12,500, so that both parties are in agreement that the court made an arithmetical error here.)
We think that, in principle, the court should not have attempted to decide in advance, in 1976, that the husband should not have to contribute further to the child's support for the ensuing nine years. And we agree with the wife that a release of the husband's equity in a house which is being used as a residence by the wife, and is probably not going to be sold, is an inappropriate and unsatisfactory way to provide for the support of a child which obviously requires current cash. Accordingly, we reverse and vacate so much of...
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