Zabin v. Zabin

• Decision Date: 16 September 1991
• Citation: Zabin v. Zabin, 574 N.Y.S.2d 75, 176 A.D.2d 262 (N.Y. App. Div. 1991)
• Parties: Robi ZABIN, Appellant, v. Steven ZABIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 75

574 N.Y.S.2d 75

176 A.D.2d 262

Robi ZABIN, Appellant, v.Steven ZABIN, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 16, 1991.

Forster, Kadish & Feldman, New York City(Gerald Kadish, of counsel), for appellant.

Pobiner, London, Bashian & Buonamici, White Plains (Howard J. Pobiner and Donna E. Zuckaman, of counsel), for respondent.

Before BRACKEN, J.P., and HARWOOD, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Westchester County(DiFede, J.H.O.), dated November 15, 1988, which, inter alia, (1) awarded maintenance of $2,000 per month for a period of only five years, (2) directed the plaintiff to commence participation in psychiatric and psychological rehabilitation programs consistent with the recommendations of psychiatrists, (3) directed the plaintiff to procure health insurance not more extensive or expensive than "present coverage" and directing the defendant to pay the insurance premiums therefor, (4) directed that the defendant shall not be responsible for unreimbursed medical expenses except to the extent of directing him to pay for unreimbursed expenses of not more than one psychological or psychiatric consultation of one hour's duration per week for a period of five years, and (5) issued an order of protection in the defendant husband's favor.

ORDERED that the judgment is modified, on the law and the facts and as a matter of discretion, by deleting the fourth, sixth, seventh and eighth decretal paragraphs thereof; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to Supreme Court, Westchester County, for further proceedings consistent herewith, and for recomputation of the defendant's maintenance obligation.In the interim, the defendant husband shall continue to make the payments mandated by the judgment under review prior to its modification by this court.

The plaintiff and the defendant were married in 1978.They have no children.The defendant, a physician, began medical school before the marriage and thereafter completed his medical training and acquired various staff and teaching positions in the field of ophthalmology.The plaintiff, a 22-year-old college graduate at the time of the marriage, has not worked outside the home, other than for several brief periods.In 1981, she was diagnosed as suffering from a schizophrenic condition but, both before and after the brief hospitalization when the diagnosis was made, she pursued outside interests, including the study of acting, some science courses, and volunteer work.In 1985, she and the defendant separated, and, in 1986, the plaintiff commenced this action.

The action was tried before a Judicial Hearing Officer who, inter alia, awarded the plaintiff maintenance for a five year period, and who also directed that the plaintiff participate in rehabilitation programs described at the trial by psychiatric witnesses.Additionally, the Judicial Hearing Officer made directives with respect to the plaintiff's health insurance and unreimbursed psychiatric therapy expenses, and issued mutual orders of protection.

The plaintiff contends here that, because of her psychiatric condition, she is unemployable and thus entitled to permanent maintenance (but see, Coffey v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74).It is true that unemployability due to mental illness, particularly when coupled with other factors such as age or lack of education, can justify an award of permanent maintenance (see, Jones v. Jones, 133 A.D.2d 217, 519 N.Y.S.2d 22;Malamut v. Malamut, 133 A.D.2d 101, 518 N.Y.S.2d 639;Antis v. Antis, 108 A.D.2d 889, 485 N.Y.S.2d 770).However, the record before us indicates that although plaintiff has a mental illness, she also has the intelligence, capability, and apparently the desire to function in a work environment (cf., Klotz v. Klotz, 150 A.D.2d 308, 541 N.Y.S.2d 806;Coffey v. Coffey, supra).Therefore, although the award of maintenance must be re-examined for reasons hereinafter noted, we decline at this time to disturb the durational limitation on maintenance fixed by the Judicial Hearing Officer (cf., Klotz v. Klotz, supra;see also, Domestic Relations Law § 236[B][9].

We agree with the plaintiff that the directive that she participate in unspecified rehabilitative programs was improper.Although the apparent rationale for this directive was to motivate the plaintiff to become financially independent, and although a court may by fixation of a durational limit on maintenance simultaneously afford the recipient spouse the time...