Sementilli v. Sementilli

• Decision Date: 31 May 1984
• Citation: 477 N.Y.S.2d 626,102 A.D.2d 78
• Parties: Mario SEMENTILLI, Plaintiff-Appellant, v. Lucia SEMENTILLI, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 626

477 N.Y.S.2d 626

102 A.D.2d 78

Mario SEMENTILLI, Plaintiff-Appellant, v. Lucia SEMENTILLI, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

May 31, 1984.

Donna Alleva, of counsel (A. Charles D'Agostino, Dobbs Ferry), for plaintiff-appellant.

Jesse Rothman, New York City, for defendant-respondent.

Before CARRO, J.P., and SILVERMAN, FEIN, LYNCH and MILONAS, JJ.

FEIN, Justice.

Plaintiff-husband appeals from a judgment, Supreme Court, Bronx County (Alfred Callahan, J.), entered April 27, 1983 which dismissed his cause of action for divorce on the ground of abandonment; granted defendant-wife judgment of divorce on grounds of cruel and inhuman treatment; awarded the wife $80 per week for child support for the three infant issue of the marriage pursuant to a prior Bronx County Family Court order; awarded an additional $25 per week as maintenance to the wife until the youngest child attained 21, graduated college or was emancipated, whichever occurred first; awarded the wife a money judgment of $8,610 for arrears of child support under the Family Court order and further directed that $9,570 for arrears in child support up to the date of the judgment (inclusive of the $8,610) be deducted from the proceeds realized by the husband from his share of the marital property; determined the husband owned an unimproved parcel of land in Italy as his separate property; directed that a house and property also located in Italy (title to which was in the husband's name) be placed for sale as marital property and the net proceeds equally divided, unless either party desired to purchase it for a fair and reasonable appraisal price; directed that five parcels of unimproved real property in New York State and one parcel in Quebec, Canada, having a total appraised value of $31,000, be sold, and the proceeds equally divided unless either party tendered $15,500 to the other; awarded the wife exclusive possession of a house purchased by her in the Bronx until the youngest child attained 21, completed his education or was emancipated, whichever occurred first, whereupon the parties were to endeavor to have one purchase the property from the other, failing which the property was to be sold, the husband to receive 50% of the proceeds, less upkeep incurred by the wife since July 1980, the husband also to be entitled to one-half the net proceeds of the rent from July 28, 1980 through April 6, 1983; decreed that a bank account in the name of the husband in the sum of $300 be deemed marital property, to be equally divided; and awarded the wife $1,500 counsel fees.

Although no notice of cross appeal appears to have been filed, the wife purports to appeal from that part of the judgment which denied her claim to any part of plaintiff's pension rights because of the failure to have the property evaluated.

We agree that the wife is entitled to a divorce but we disagree with the equitable distribution aspects of the award.

The husband, age 59 at the time of trial, first came to the United States in 1954. He became a member of the Excavators Union in 1957. In February 1962, while he was in Italy for approximately eight months, he married defendant. They moved into a four room house he owned in Italy. The record is not clear whether the house was already fully built or was still incomplete. Doors, a new roof and a back house were added thereafter. The husband did some of the work and paid for the rest. Prior to the marriage the husband acquired an additional plot of land adjoining the property on which the house stood, with his own funds and in his own name. The parties' first child was born in December 1962 in Italy. At the time of the child's birth the husband had already returned to America. Over the next nine years, the husband made three trips to Italy for periods totalling two years. During those years, the parties had three more children, all born in Italy, twins born in October 1964 and a son born in July 1968. The wife maintained the house and cared for the children with some assistance from her parents and his parents during those nine years. She cared for the animals, grew crops, and worked as a seamstress and supported herself and the children with limited assistance sent by her husband from America.

Upon the insistence of the wife, the husband, by then an American citizen, brought his wife and four children to New York in December 1971. The family took up residence in a small Bronx apartment which the husband had rented.

Within two months of her arrival, the wife began to work as a seamstress, in a factory and at home. She maintained this occupation almost continuously from then until the time of trial, earning between $140 and $150 per week. She also maintained the household. The husband was then earning approximately $300 per week. He paid the rent for the apartment, and for a subsequent apartment to which the family moved, at the rate of $120 per month, as well as gas, electric and telephone bills. He made mortgage payments of approximately $140 per month on the parcels of unimproved land which he purchased. The income tax returns of the parties indicate a range of income for the family from $7,000 in 1971 to $21,000 in 1974. The extent to which the husband and the wife each provided funds for food, clothing, etc. is unclear from the record.

In 1972 the husband utilized his own funds to purchase two lots in Sullivan County, New York, and one lot in Quebec, Canada, all taken in the joint names of husband and wife. The Sullivan County properties were subject to mortgages of $5,000 and $6,000 respectively. The husband testified that they were paid off and that he had also paid $400 down on each purchase. The Quebec deed indicates a purchase price of $5,060. In 1977 the husband purchased two lots in Suffolk County. Title to one of them was taken as tenants by the entirety, the other in the husband's name. These five lots and another in the husband's name were appraised after trial but before judgment at $31,000.

The wife repeatedly urged the husband to purchase a house for the family to live in in the Bronx. He continually refused. In June 1980, the wife, utilizing funds she had saved from her own work, funds from her children's jobs and $1,500 which her father sent from Italy, bought a two-family house in the Bronx, solely in her own name, putting down $8,000 and obtaining a $30,000 mortgage, leaving her with no savings. She did not advise the husband of the purchase until June 28, 1980 when she moved most of the possessions out of the parties' apartment while he was at work. When he returned home from work that evening, she made his dinner and then told him that she and the children were moving. She asked him to join them, but he refused. Two days later she went to the Family Court to seek an order of child support, ultimately obtained. Between that time and the time of the trial, the husband never sought out his children. He spoke to them only occasionally when he met them on the street. He made no child support payments of $80 per week pursuant to the Family Court order which directed such payment, so at the time of trial there were arrears of $8,610.

The husband commenced this action for divorce on the ground of abandonment in July 1981. The wife's original answer and counterclaim asserted that the husband had refused to accompany the wife to the new home, and asserted a cause of action for separation on the ground of cruel and inhuman treatment. The wife's amended answer and counterclaim requested a divorce upon the ground of cruelty.

The evidence was sufficient to sustain the trial justice's finding that the wife was entitled to a divorce from the husband upon the ground of cruel and inhuman treatment, and to deny the husband's claim for a divorce on the ground of abandonment. The wife was given sole custody of the one child under the age of 18, which is not contested. The court awarded $80 per week child support on the basis of the prior Family Court award, plus an additional $25 per week for the maintenance of the wife, until the youngest child was emancipated, completed his education or became 21, whichever occurred first. The court also directed that the child support arrears be deducted from the proceeds received by the husband from his share of marital property and that a judgment for the arrears be entered against him as well.

The court then found that the unimproved parcel of land in Italy, owned by the husband prior to the marriage, was separate property and not subject to equitable distribution. All other real property, including the land and house in Italy in which the wife and children had lived for the first nine years of the marriage, and the house in the Bronx purchased by the wife and six parcels of unimproved real property purchased by the husband, were found to be marital property. The court directed that all such property be sold and the proceeds divided equally unless one party paid the other one-half the value. However, the wife was given exclusive possession of the house in the Bronx which she had purchased, until the youngest child reached 21 years of age, was emancipated, or completed his education, whichever occurred first.

The court awarded the wife $1,500 counsel fees, $1,000 to reimburse the amount she had advanced and $500 to the attorney. The court also directed that the husband's bank account in the sum of $300 be deemed marital property, one-half of which ($150) was to be paid to the wife.

The husband's challenge of the $80 per week child support award, because the court did not conduct any inquiry as to the circumstances, means and resources or the needs of the parties and children, is without merit. It was proper for the court to rely upon the prior Family Court award. Moreover, the record sufficiently supports the sum of $80 per week for support of the four children, all of whom were under the age of 21. The financial circumstances and...