McComish v. McComish

• Decision Date: 13 May 1996
• Citation: 227 A.D.2d 454,642 N.Y.S.2d 921
• Parties: Donna Rose McCOMISH, Respondent, v. William Patrick McCOMISH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 921

642 N.Y.S.2d 921

227 A.D.2d 454

Donna Rose McCOMISH, Respondent, v. William Patrick McCOMISH, Appellant.

Supreme Court, Appellate Division Second Department.

May 13, 1996.

Grant & Landau, White Plains (Harvey Jacobs and Harvey G. Landau, of counsel), for appellant.

Kaminsky & Rich, White Plains (Walter L. Rich, of counsel), for respondent.

Before BALLETTA, J.P., and SULLIVAN, COPERTINO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals (1) from an order of the Supreme Court, Westchester County (Silverman, J.), entered July 25, 1994, which in effect, denied his motion, inter alia, to set aside a decision of the same court dated June 3, 1994, which, among other things, determined the issues of equitable distribution, maintenance, and child support, and (2) as limited by his notice of appeal and brief, from stated portions of a judgment of the same court, dated September 13, 1994, entered upon the court's "amended decision" dated July 25, 1994, which, inter alia: (a) awarded the plaintiff wife $700 per month in child support, (b) awarded the plaintiff wife title to the marital residence in lieu of an award of $68,850, representing arrears in child support, her share in marital property including credit for marital assets dissipated by the defendant husband, and "lump sum maintenance", and (c) directed the defendant husband to share in the medical, insurance, and college expenses of the couple's youngest child, with his share to be in proportion to the parties' respective incomes.

ORDERED that the appeal from the order is dismissed without costs or disbursements, as no appeal lies from an order which decides a motion to set aside a decision (see, Behrens v. Behrens, 143 A.D.2d 617, 532 N.Y.S.2d 893); and it is further,

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by (1) deleting from the fifth decretal paragraph thereof the sum of $68,850 and substituting therefor the sum of $65,350, (2) adding thereto after the words "New Rochelle, New York" the words "on condition that the plaintiff pay to the defendant the sum of $3,500", and (3) adding thereto after the words "household expenses in connection with same" the following, "In the event that the plaintiff fails to pay to the defendant the sum of $3,500, the marital residence is to be sold, with the parties each receiving the amounts herein awarded as their respective credits...