Wurm v. Wurm

• Decision Date: 08 March 1982
• Parties: Betty WURM, Respondent, v. Morris WURM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 758

447 N.Y.S.2d 758

87 A.D.2d 590

Betty WURM, Respondent, v. Morris WURM, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 8, 1982.

Siller & Galian, New York City (Sidney Siller, New York City, of counsel), for appellant.

Ira Richard Bennett, New York City (Lawrence H. Bloom, New York City, on the brief), for respondent.

Before MANGANO, J. P., and THOMPSON, BROWN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals, as limited by his brief, from so much of a judgment of divorce of the Supreme Court, Kings County, dated August 6, 1980, as (1) granted custody of the parties' infant daughter, born on February 9, 1970, to the plaintiff wife, (2) granted exclusive possession of the marital residence to plaintiff and directed the defendant to vacate the marital residence within 30 days, (3) granted plaintiff alimony and child support in the sum of $400 per month, allocating $200 for alimony and $200 for child support, (4) directed the defendant to maintain all of his existing medical coverage, as provided by his employer, maintaining his daughter as beneficiary thereof, (5) directed defendant to pay the mortgage, insurance and fuel expenses for the marital residence, (6) directed defendant to notify his employer to remove all voluntary payroll deductions from his salary and wages and (7) granted plaintiff a wage deduction order pursuant to section 49-b of the Personal Property Law.

Judgment modified, on the law and the facts, (1) by modifying the seventh decretal paragraph so as to increase alimony to $400 per month and child support to $300 per month, for a total of $700 per month, (2) by adding to the seventh decretal paragraph provisions that the 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 total sum is inclusive of all obligations of defendant for the support and maintenance of the plaintiff and the infant child Julie Hope Wurm, except extraordinary medical or dental expenses, (3) by deleting the eighth and twelfth decretal paragraphs, and (4) by modifying the eleventh decretal paragraph so as to increase the wage deduction order to $700 per month. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was awarded custody of the parties' 12-year-old daughter and the defendant was awarded custody of the parties' 17-year-old son. It is axiomatic that "the separation of siblings * * * is to be frowned upon" and "familial relationships are much to be encouraged" (Matter of Ebert v. Ebert, 38 N.Y.2d 700, 704, 382 N.Y.S.2d 472, 346 N.E.2d 240). However that may be, in cases where it is clear that the best interests of each child lies with a different parent, a split custody decree is proper (see Eschbach v. Eschbach, 83 A.D.2d 845, 441 N.Y.S.2d 754; Sandman v. Sandman, 64 A.D.2d 698, 407 N.Y.S.2d 563; Porges v. Porges, 63 A.D.2d 712, 405 N.Y.S.2d 115). Such is the case herein.

The granting of exclusive occupancy of the marital premises to the plaintiff was not an abuse of discretion on the part of the Trial Judge. The circumstances of the parties are such that the...