Weaver v. Weaver

• Decision Date: 30 October 1980
• Parties: Diane WEAVER, Respondent v. Sheldon WEAVER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 654

433 N.Y.S.2d 654

78 A.D.2d 771

Diane WEAVER, Respondent v. Sheldon WEAVER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Oct. 30, 1980.

Hodgson, Russ, Andrews, Woods & Goodyear by William Gardner, Buffalo, for appellant.

Cunningham, Pares & Renda by James Renda, Buffalo, for respondent.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and WITMER, JJ.

MEMORANDUM:

Defendant, Sheldon Weaver, appeals from the judgment of divorce and temporary injunction granted against him in this action. He does not dispute the propriety of the divorce and custody provisions but asserts that the court erred in the amount of alimony and child support payments which it directed.

We reject defendant's contention that sections 236 and 237 of the Domestic Relations Law are unconstitutional by reason of Orr v. Orr (440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306). The amendments of those sections (L.1980, ch. 281, §§ 9, 10) conform them to the gender-neutral requirement of the Orr decision. Although the awards in this case preceded Orr and the statutory amendments, we have ruled that the former versions of such statutes are to be read in a gender-neutral manner (see Jadhon v. Jadhon, A.D.2d, 431 N.Y.S.2d 218, and cases cited therein), and we do not find that these statutes were unconstitutionally applied by the trial court in this case.

Although the trial court made some findings of fact, it failed to do so completely in support of its determinations as provided by statute (CPLR 4213, subd. (b)). It is apparent that the trial court assumed that defendant had some income in amounts not specifically revealed in the record. Rather than reverse and order a new trial, we deem it advisable to conclude the litigation at this time by making the findings of fact and conclusions of law which the record supports.

Plaintiff's gross income at trial was approximately $5400 per year, and it appears that she had other assets of about $4,000 in personal property besides her 25 per cent ownership of the capital stock of Weaver Manufacturing, Inc., the market value of which was not established. It appears that dividends are not presently being paid on that stock.

Defendant's gross income at trial was approximately $21,600 per year. He owned an unencumbered parcel of real property, the value of which was not established, furs, jewelry, snowmobiles and automobiles valued in excess of $18,000, 75 per cent of the capital stock of Weaver Manufacturing, Inc. and all of the capital stock of 991 Aero Drive, Inc. which owns the real property on which Weaver Manufacturing, Inc. conducts its business and for the use of which Weaver Manufacturing, Inc. pays to 991 Aero Drive, Inc. $30,000 annual rent. The record, however, does not show the value of defendant's stock in Weaver Manufacturing, Inc. nor the value of the stock of 991 Aero Drive, Inc. There is evidence that the latter corporation's expenses equal the rent received. Defendant also owns a boat for which in 1976 he paid $11,750, but its present value was not shown. It was defendant's practice to have Weaver Manufacturing, Inc. pay many of his bills, but there is no...