Markland v. Markland

• Decision Date: 13 February 1979
• Citation: Markland v. Markland, 67 A.D.2d 940, 413 N.Y.S.2d 202 (N.Y. App. Div. 1979)
• Parties: Eleanor L. MARKLAND, Respondent-Appellant, v. Franklin J. MARKLAND, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 202

413 N.Y.S.2d 202

67 A.D.2d 940

Eleanor L. MARKLAND, Respondent-Appellant, v. Franklin J. MARKLAND, Appellant-Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 13, 1979.

Taylor, Atkins & Ostrow, Garden City (Michael B. Atkins, Garden City, of counsel), for appellant-respondent.

David E. Sallah, Garden City, for respondent-appellant.

Before DAMIANI, J. P., and TITONE, SHAPIRO and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the parties cross-appeal from a judgment of the Supreme Court, Nassau County entered August 29, 1978, which, Inter alia, granted the wife a divorce on the ground of cruel and inhuman treatment, made awards of alimony and child support, granted the wife custody of the parties' 20-year-old daughter, and awarded the wife a counsel fee of $4,500.

Judgment modified, on the law and the facts, by (1) deleting the second, third, tenth and eleventh decretal paragraphs thereof and substituting therefor provisions denying plaintiff's requests for custody, 50% Of the outstanding stock of Island Business Machines and a counsel fee, and (2) adding thereto a provision awarding plaintiff interest on her portion of the joint bank accounts which was withdrawn by the husband. As so modified, judgment affirmed, without costs or disbursements, and action remanded to Special Term for entry of an appropriate amended judgment.

The trial court erred in granting the wife custody of the parties' 20-year-old daughter (see Silverman v. Silverman, 50 A.D.2d 824, 376 N.Y.S.2d 182; see, also, Blauner v. Blauner, 60 A.D.2d 215, 400 N.Y.S.2d 335). Since the daughter is over the age of 18 years, she has reached the age of majority for purposes of custody (see Domestic Relations Law, § 2). However, the trial court did not err in awarding child support. While the wife may not have been entitled to custody of the daughter, it was appropriate that the child's share of the support payments be paid to her mother for her benefit (see Blauner v. Blauner, supra ).

On the issue of alimony, the evidence adduced at the trial was sufficient to prove that the husband could afford to pay $175 per week.

Concerning the court's imposition of a constructive trust on behalf of the wife for 50% Of the shares of the defendant's business, it is our opinion that there was no basis for the making of such an award. There was insufficient evidence that from the outset of the business the parties intended that the wife would share equally therein. Although there was a confidential relationship between the parties (i. e., marriage), there was no evidence that the plaintiff relied to her detriment on any promise made by the defendant (cf. Janke v. Janke, 47 A.D.2d...