Troiano v. Troiano

Decision Date08 March 1982
Citation87 A.D.2d 588,447 N.Y.S.2d 753
PartiesMary Ann TROIANO, Respondent, v. Gabriel TROIANO, Appellant.
CourtNew York Supreme Court — Appellate Division

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.



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...

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22 cases
  • Leibowits v. Leibowits
    • United States
    • New York Supreme Court — Appellate Division
    • May 16, 1983 through possession of real (Scampoli v. Scampoli, 37 A.D.2d 614, 323 N.Y.S.2d 627), or personal property (Troiano v. Troiano, 87 A.D.2d 588, 447 N.Y.S.2d 753; Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783), by excluding on......
  • Price v. Price
    • United States
    • New York Supreme Court — Appellate Division
    • December 9, 1985
    ...obligation and was improper under 22 NYCRR 699.9(f)(6) (see, Armando v. Armando, App.Div., 495 N.Y.S.2d 192; Troiano v. Troiano, 87 A.D.2d 588, 447 N.Y.S.2d 753; Di Mascio v. Di Mascio, 88 A.D.2d 966, 967, 451 N.Y.S.2d 812). Rather, under the circumstances of this case, we find that Special......
  • Lidsky v. Lidsky
    • United States
    • New York Supreme Court
    • December 12, 1986
    ...Pocket Part), by providing in-kind support through possession of real (Scampoli v Scampoli, 37 AD2d 614 ) or personal property (Troiano v Troiano, 87 AD2d 588 ; Silbert v Silbert, 22 AD2d 893 aff'd 16 NY2d 564 [260 N.Y.S.2d 838, 208 N.E.2d 783] ), by excluding one spouse from premises occup......
  • Waterman v. Waterman
    • United States
    • New York Supreme Court — Appellate Division
    • April 16, 1990
    ...expenses for the children of the marriage (see, Matter of Dapolito v. Dapolito, supra; Armando v. Armando, supra; Troiano v. Troiano, 87 A.D.2d 588, 447 N.Y.S.2d 753). The plaintiff wife concedes that the defendant may take income tax exemptions for the parties' children. Accordingly, we di......
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