Lohmiller v. Lohmiller

• Decision Date: 16 May 1988
• Citation: 528 N.Y.S.2d 586,140 A.D.2d 497
• Parties: Michelle LOHMILLER, Respondent-Appellant, v. Gordon LOHMILLER, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 586

528 N.Y.S.2d 586

140 A.D.2d 497

Michelle LOHMILLER, Respondent-Appellant, v. Gordon LOHMILLER, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

May 16, 1988.

Daniel D. Molinoff, Larchmont (Raymond A. Powers, of counsel), for appellant-respondent.

Fahey & Isaac, White Plains (Evelyn K. Isaac, of counsel), for respondent-appellant.

Before BRACKEN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, (1) the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Westchester County (Buell, J.), dated September 23, 1986, which, inter alia, granted custody of the parties' child to the plaintiff wife, limited his overnight visitation with the child, directed him to pay to the wife $175 per week as maintenance and $150 per week as child support, and denied his application for counsel fees and directed him to pay the sum of $7,500 towards the wife's counsel fees, and the plaintiff wife cross-appeals, as limited by her brief, from so much of the same judgment as failed to direct the husband to pay a greater portion of her counsel fees, and (2) the plaintiff appeals, as limited by her brief, from so much of an order of the same court, dated December 1, 1986, as sua sponte modified the judgment so as to direct her to assume payment of all carrying charges on the marital residence due after February 1, 1987, if the property was not sold and a closing date set by January 31, 1987 and the defendant cross-appeals, as limited by his brief, from so much of the same order as denied his motion for renewal and reargument with respect to stated portions of the judgment dated September 23, 1986.

ORDERED that the plaintiff wife's cross appeal from the judgment and her appeal from the order are dismissed for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.20[d], [e] ), and it is further,

ORDERED that the judgment dated September 23, 1986, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated December 1, 1986, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The parties were married in 1973 and have one child, born in December 1981. The judgment granted the parties a mutual divorce on the ground of the cruel and inhuman treatment of each by the other. The two-week trial of this action centered almost exclusively on the issue of custody of their daughter.

The court's decision to award custody of the child to the plaintiff is supported by the evidence in the record and should not be disturbed ( see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Bonheur v. Bonheur, 138 A.D.2d 441, 525 N.Y.S.2d 859). The intense acrimony between the parties, who continued to reside in the same house during these protracted divorce proceedings, precluded an award of joint custody ( see, Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019). Although the defendant presented convincing evidence of the loving relationship between...