Troiano v. Troiano

• Decision Date: 08 March 1982
• Citation: 87 A.D.2d 588,447 N.Y.S.2d 753
• Parties: Mary Ann TROIANO, Respondent, v. Gabriel TROIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 753

447 N.Y.S.2d 753

87 A.D.2d 588

Mary Ann TROIANO, Respondent, v. Gabriel TROIANO, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 8, 1982.

Marshall, Bratter, Greene, Allison & Tucker, New York City (Howard P. Roy and Susan L. Lesinski, New York City, of counsel), for appellant.

Simonson & Cohen, P. C., Staten Island (Daniel Cohen, Staten Island, of counsel), for respondent.

Before MOLLEN, P. J., and LAZER, MANGANO and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of divorce of the Supreme Court, Richmond County, dated November 19, 1980, as (1) directed him to pay alimony of $100 per week and child support of $75 per week per child (total of $300 per week as child support), (2) ordered that the plaintiff wife is to have exclusive possession of the marital premises until the parties' third of four children reaches the age of 21, (3) directed defendant to pay the mortgage, taxes, heating, insurance and extraordinary expenses necessary to maintain the marital premises, (4) directed defendant to pay the reasonable and necessary medical and dental expenses of the children, (5) directed plaintiff to pay only $5,000 to defendant representing one-half of the remainder of moneys taken by plaintiff from defendant, (6) directed defendant to convey title to his 1979 Chevrolet Impala station wagon to plaintiff, (7) directed defendant to pay plaintiff $2,000 in counsel fees, and (8) denied his counterclaim for conversion of $27,000.

Judgment modified, on the law and the facts, by (1) modifying the sixth decretal paragraph so as to increase alimony to $245 per week, (2) adding to the sixth decretal paragraph provisions that the alimony award is inclusive of defendant's obligation to pay the costs and expenses of maintenance, operation and upkeep of the marital premises, except extraordinary repairs of the house, and that the alimony and child support awards are inclusive of all obligations of defendant for the support of the plaintiff and the children, except extraordinary medical or dental expenses, (3) deleting the eighth and ninth decretal paragraphs, (4) deleting the words after "sum of" in the twelfth decretal paragraph and replacing them with the words "$10,000 representing the full amount of the remainder of moneys taken by plaintiff from defendant by conversion after the total of $27,000 taken by plaintiff is reduced by the amount of money plaintiff spent on necessaries", to wit $17,000, and (5) deleting the words after "shall" in the sixteenth decretal paragraph and inserting in their place the words "provide plaintiff with the exclusive use and possession of his 1979 Chevrolet Impala station wagon." As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.

It is clear from the facts and circumstances of this case that the amounts awarded for direct and indirect alimony (mortgage payments, taxes, insurance and heating) and child support were not excessive. However, payments of the carrying charges on the house (mortgage payments, taxes, insurance and heating) are in the nature of open-ended obligations, and thus improper under 22 NYCRR 699.9(f)(6) (see Murena v. Murena, 75 A.D.2d 640, 427 N.Y.S.2d 289). The amount necessary to meet these costs should be taken into account when setting alimony and child support (see Doris v. Doris, 81 A.D.2d 602, 437 N.Y.S.2d 716). Therefore, the alimony figure has been increased to compensate for these open-ended expenses which will now be borne by the plaintiff. Similarly, medical and dental costs are open-ended and the provision directing their payment must be stricken from the judgment. However, this decision does not preclude plaintiff from applying for payment of future extraordinary medical or dental expenses for herself or the children or for payment of the...