Waterman v. Waterman

• Decision Date: 16 April 1990
• Citation: 160 A.D.2d 865,554 N.Y.S.2d 298
• Parties: Robyn S. WATERMAN, Respondent-Appellant, v. Bruce L. WATERMAN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 298

554 N.Y.S.2d 298

160 A.D.2d 865

Robyn S. WATERMAN, Respondent-Appellant, v. Bruce L. WATERMAN, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 16, 1990.

Gassman Gouz & Fisher, Garden City (Stephen Gassman and Barry J. Fisher, of counsel), for appellant-respondent.

Gulotta & Stein, Mineola (Frank A. Gulotta, Jr., of counsel), for respondent-appellant.

Before MANGANO, P.J., and KUNZEMAN, KOOPER and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Lowey, J.H.O.), entered May 20, 1988, which, inter alia, (1) distributed the parties' property and awarded the plaintiff wife the sum of $31,895.53 as a distributive award in lieu of distribution of the plaintiff's equitable share of four treasury bills, certain securities, the defendant's flea market business, and moneys contained in their joint savings account at the Century Federal Savings and Loan Association, (2) awarded the plaintiff wife the sum of $120 per week as maintenance for a period of three years and directed him to maintain medical insurance for the wife during that period, (3) directed him to pay child support in the amount of $280 per week for parties' two children, and directed him to pay one-half of medical, hospital and dental costs in excess of $500 incurred for the benefit of the children and not covered by insurance, (4) determined maintenance and child support arrears, (5) directed him to deposit money into custodial accounts for the benefit of the parties' children, and, (6) failed to direct the wife to permit him to claim the children as dependents pursuant to Internal Revenue Code § 152(e) (26 USCA § 152[e], and the plaintiff wife cross-appeals from so much of the same judgment as denied her request for an alternate schedule of visitation to permit the parties' children to participate in organized sports activities.

ORDERED that the judgment is modified, on the law and the facts and as a matter of discretion, (1) by deleting from the fifth decretal paragraph thereof the provision that "and the plaintiff and the defendant shall each be liable for one-half of all medical, hospital and dental costs incurred for the benefit of the children, in excess of the first $500.00, not covered by insurance", (2) by deleting from the eighteenth decretal paragraph thereof "the sum of $31,895.53", and substituting therefor "the sum of $21,686.58", based upon a finding that the wife is entitled to a 25% share in the stock appreciation of the husband's securities portfolio and his flea market business, and, (3) by adding a provision thereto directing the plaintiff wife to execute the necessary tax forms to permit the husband to claim the children of the parties as dependents pursuant to Internal Revenue Code § 152(e) (26 USCA § 152[e]; as so modified the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Upon a review of the record, we find that the court did not err in determining that the plaintiff wife was entitled to share in the stock appreciation represented by the increase in value of the defendant husband's securities portfolio which constituted separate property (see, Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684). However, we find that the percent of appreciation granted to the...