Freiman v. FreimanFreiman v. Freiman
In а matrimonial action, defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Nassau County (MсCaffrey, J.), entered September 1,1983, as dismissed his second amended counterclаim for divorce on the ground of abandonment, awarded custody of the infant children to the plaintiff wife, and awarded plaintiff attorney’s fees in the sum of $25,000, and plaintiff cross-appeals, as limited by her brief, from so much of the same judgment as limited alimony to the sum of $300 per week, child support to the sum of $225 per week and attorney’s fees to the sum of $25,000 and granted her exclusive possession of the marital residence only until her death or remarriage or upon emancipation of thе infant issue of the marriage, whichever occurs first. Judgment modified, on the law and the fаcts, by deleting the second, third and fifth decretal paragraphs and so much of the fourth decretal paragraph as awarded custody of the infant children tо the plaintiff and fixed child support in the sum of $225 per week, and substituting therefor provisiоns awarding custody to the defendant. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the fixation of liberal visitation provisions and a new determination with rеspect to the disposition of the marital residence. Following the commеncement of this matrimonial action, plaintiff was awarded temporary custody of the children. On January 16, 1983, however, plaintiff’s male friend assaulted one of the сhildren in the plaintiff’s house, and, in a subsequent habeas corpus proceeding, Justice Wager transferred custody to defendant finding, inter alia, that plaintiff acted “inapprоpriately” under the circumstances. Nonetheless, Special Term, after trial in the instant action, in a conclusory memorandum, awarded custody of the two infant children to plaintiff. By order of this court dated September 7,1983, that provision of thе judgment was stayed pending the determination of this appeal. Although we are well aware of the holdings requiring that the determinations of nisi prius courts in custody proceedings are entitled to the greatest respect (e.g., Eschbach v Eschbach,