Malamut v. Malamut

• Decision Date: 10 August 1987
• Citation: Malamut v. Malamut, 518 N.Y.S.2d 639, 133 A.D.2d 101 (N.Y. App. Div. 1987)
• Parties: Barbara C. MALAMUT, Appellant, v. Richard M. MALAMUT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 639

518 N.Y.S.2d 639

133 A.D.2d 101

Barbara C. MALAMUT, Appellant, v. Richard M. MALAMUT, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 10, 1987.

Rudnick & Sheps, New York City (Elaine Rudnick Sheps and William N. Binderman, of counsel), for appellant.

Koopersmith, Feigenbaum & Potruch, Lake Success (Alexander Potruch, Charles Margett and Andrew D. Greene, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Berman, J.H.O.), dated April 3, 1986, which, inter alia, (1) awarded her exclusive possession of the marital home only until May 1, 1987, at which time the house and its furnishings were to be sold and the proceeds distributed equally between the parties; (2) directed that the defendant husband pay her from the proceeds of the sale only $24,000 for stock which she had previously transferred to the husband; (3) directed that the husband pay her from the proceeds of the sale only $13,105 for her share of the husband's pension benefits; (4) awarded her until May 1, 1987, maintenance in the amount of $150 per week plus $200 per month for food and groceries, and directed the husband to directly pay certain of her other living expenses; (5) denied her application for child support; (6) denied her application for counsel fees; (7) denied her application for psychiatrist's fees; and (8) denied her application for accountant's fees.

ORDERED that the judgment is modified, on the law and as a matter of discretion, (1) by deleting so much of the fourth and eighth decretal paragraphs thereof as awarded the wife maintenance of $150 per week plus $200 per month and directed payment by the husband of additional expenses until May 1, 1987, and substituting therefor a provision awarding the wife maintenance in the amount of $3,600 per month until her death or remarriage, whichever occurs first, (2) by deleting so much of the seventh decretal paragraph thereof as denied child support and substituting therefor a provision awarding the wife child support in the amount of $400 per month until the child reaches the age of 21 years or is sooner emancipated, and (3) by deleting so much of the tenth decretal paragraph as directed the sale of the furnishings of the marital home, and substituting therefor a provision awarding the furnishings to the wife, except for the Boehm birds which shall be sold and the proceeds divided equally between the parties; 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 determination as to the amount of arrears in child support, and maintenance, if any, due and owing to the plaintiff, and the entry of an appropriate amended judgment.

At the outset, we note that the judicial hearing officer erroneously failed to set forth the factors he considered and the reasons for his decision as is statutorily mandated (see, Domestic Relations Law § 236[B][6][b] ). However, since the record of the trial and the court's decision provide a sufficient basis for...