Weseley v. Weseley

• Decision Date: 11 July 1977
• Citation: 396 N.Y.S.2d 455,58 A.D.2d 829
• Parties: Susan W. WESELEY, Respondent, v. Martin S. WESELEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 455

396 N.Y.S.2d 455

58 A.D.2d 829

Susan W. WESELEY, Respondent, v. Martin S. WESELEY, Appellant.

Supreme Court, Appellate Division, Second Department.

July 11, 1977.

Meyer, English, Cianciulli & Peirez, P. C., Mineola (Bernard S. Meyer, Robert M. Calica and Malachy T. Mahon, Hempstead, of counsel), for appellant.

Krakower & Weissman, New York City (Eugene V. Weissman and Jeffrey T. Kovner, New York City, of counsel), for respondent.

Before COHALAN, J. P., and DAMIANI, RABIN and TITONE, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia for divorce, the defendant husband appeals from stated portions of a judgment of the Supreme Court Kings County, entered March 3, 1977, which, after a nonjury trial, inter alia, (1) awarded plaintiff-respondent alimony and child support, (2) declared the parties to be joint owners of certain works of art and provided for the disposition thereof, (3) awarded exclusive possession of the marital residence to the wife and (4) awarded the wife a counsel fee of $25,000.

Judgment modified, on the law and the facts, by reducing the counsel fee awarded to $20,000. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.

The record supports the disposition which Special Term directed of the various works of art. No prejudice to the rights of the husband's corporation was occasioned. We agree with Special Term that the so-called " corporate art" was held by the husband's professional corporation in name only, and that the parties were the actual owners thereof.

The court did not commit error in awarding the wife $60,000 per year in alimony. The defendant-appellant, a successful orthopedic surgeon and a member of the afore-mentioned professional corporation, not only earns well in excess of $150,000 per year, but also receives numerous benefits from the corporation which have contributed substantially to the preseparation standard of living and which will enable him to pay the alimony award.

Similarly, we hold that Special Term was not in error in ordering the defendant to pay all of the medical and dental expenses, as well as the tuition, of the parties' two daughters. The record reveals that he made several statements in open court that he would do so.

In addition, the court properly awarded exclusive possession of the marital home to the wife until such time as the children either reach the age of 21 years or marry. The testimony shows that such would be in the best interests of all of the parties, especially in the light of the psychiatric problems of the plaintiff and the elder daughter. Moreover, there is no financial exigency which would weigh in favor of selling the house now, as opposed to in a few years hence when the daughters reach the age of 21. Finally, the court's award of $25,000 as a counsel fee was excessive, since a good portion of the trial in this divorce action, and the preparation therefor, involved litigation over title to the works of art. This court has previously held that counsel fees are not recoverable on a nonmatrimonial cause of action (Lambert v. Lambert, 45 A.D.2d 715, 356 N.Y.S.2d 94). We recognize that counsel for the wife expended much effort on this case, and did so in a highly professional manner which would otherwise merit the award, but we are nevertheless constrained to reduce the award to $20,000, which represents adequate compensation for services rendered in connection with the strictly matrimonial causes of action.

COHALAN, J. P., and DAMIANI and RABIN, JJ., concur.

TITONE, J., concurs in part and dissents in part and votes to affirm the judgment insofar as it is appealed from, with the following memorandum:

I agree with my colleagues in this matter with respect to their affirmance of the awards of alimony and child support, the disposition of the works of art and the award of exclusive possession of the marital residence to the plaintiff wife. However, I cannot agree with their determination that Special Term's award of $25,000 in counsel fees to plaintiff's attorney was excessive because much of the trial involved a purported nonmatrimonial issue, to wit, litigation over title to the works of art.

I take this position because courts have uniformly held that property claims of the litigants involved in a matrimonial action should be determined either in that action or in the matrimonial part, rather than in a separate plenary action (Sloan v. Sloan, 48 A.D.2d 867, 369 N.Y.S.2d 186; Ripp v. Ripp, 38 A.D.2d 65, 327 N.Y.S.2d 465; Ellis v. Shapiro, 56 Misc.2d 379, 288 N.Y.S.2d 841). Thus, in Sloan v. Sloan (supra, 48 A.D.2d p. 868, 369 N.Y.S.2d p. 188) this court stated "The trial court in the exercise of discretion should have made provision for distribution of the assets which are jointly owned by the parties and are presently in plaintiff's possession. Although defendant did not formally request such relief at the trial, it would be a hardship to require the parties to absorb the additional costs of a plenary action concerning that at this time. The trial court did dispose of other property claims in this action and was aware of defendant's claims as to the joint assets. In addition, defendant appears to be having difficulty in meeting...