Marcello v. Marcello

• Decision Date: 15 October 1990
• Citation: 166 A.D.2d 558,560 N.Y.S.2d 841
• Parties: Ann MARCELLO, Appellant, v. William R. MARCELLO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 841

560 N.Y.S.2d 841

166 A.D.2d 558

Ann MARCELLO, Appellant, v. William R. MARCELLO, Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 15, 1990.

Rodney L. Salvati, Katonah, for appellant.

Before BROWN, J.P., and LAWRENCE, KOOPER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce and ancillary relief, the plaintiff wife appeals as limited by her brief, from stated portions of a judgment of the Supreme Court, Westchester County (Donovan, J.), dated October 17, 1988, which, inter alia, awarded her child support in the amount of only $50 per week for each of the parties' two children and a distributive award in the amount of only $100,000.

ORDERED that the judgment is modified on the law and facts and as a matter of discretion, by (1) deleting from the second decretal paragraph the words "child support $50.00 per week per child", and substituting therefor "child support $90.00 per week per child", and (2) deleting from the third decretal paragraph thereof, wherever it appears, the sum "$100,000.00" and substituting therefor the sum "$150,000.00"; as so modified the judgment is affirmed insofar as appealed from, without costs or disbursements, and the defendant's time to pay the remaining $50,000 of the distributive award is extended until three months after service upon him of a copy of this decision and order with notice of entry.

Despite the somewhat cursory nature of the approach which the trial court took in setting forth the factors and reasons for its decision with respect to the awards of child support, maintenance, and equitable distribution as required by Domestic Relations Law § 236(B)(5) and (7), we find that it met the minimal requirements of the statute in providing an adequate basis for intelligent appellate review of its decision (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 498 N.Y.S.2d 743, 489 N.E.2d 712; Cappiello v. Cappiello, 66 N.Y.2d 107, 110, 495 N.Y.S.2d 318, 485 N.E.2d 983; Reina v. Reina, 153 A.D.2d 775, 544 N.Y.S.2d 895).

Upon such review, we modify the disposition made by the trial court because the court failed to give adequate weight to several key considerations relevant to the facts of the case before it. In particular, we find that the court did not pay sufficient attention to the husband's earning potential as a union carpenter of long standing. Not only did the husband testify that work looked "pretty good" for him, but there was evidence that his unemployment...