72 Misc. 2d 886 | N.Y. Sup. Ct. | 1972
In this action for divorce based on allegations of cruel and inhuman treatment, plaintiff requests custody of two infant children, aged seven and three, alimony, support and maintenance for the children, exclusive possession of the marital residence and counsel fees. Defendant, contesting, seeks dismissal of the complaint.
The parties were married in New York on September 13,1964.
The court finds that jurisdiction as required by section 230 of the Domestic Relations Law has been obtained.
Plaintiff testified that on numerous occasions the defendant physically abused her. The court finds that on at least four occasions (one incident during February, 1971 and on January 21, 26 and 29 of 1972) the defendant did either strike or choke the plaintiff causing her to sustain physical injury and suffer mental anguish. This conduct so endangers plaintiff’s well-being that it is unsafe and improper for her to cohabit with the defendant and she is granted a judgment of divorce (Domestic Relations Law, § 170, subd. 1).
Custody of the infant children is entrusted to plaintiff. Defendant should have liberal rights of visitation. Hopefully the parties may agree thereon. In the event they are unable to do so then the court will fix the same after considering the written suggestions of the parties. These requests should be submitted along with the proposed judgment to be settled hereon.
Plaintiff requests support and maintenance for herself and the children and exclusive possession of the marital residence. This last request defendant opposes alleging that since he is the sole owner of the marital domicile, which was purchased with his funds, he may not be denied possession thereof. Since a fundamental element of support involves the furnishing of a shelter for the family (Rosenstiel v. Rosenstiel, 20 A D 2d 71, 77; Family Ct. Act, § 416) the court must in this action determine the threshold question as to whether it has authority to grant plaintiff and the two infant children possession of defendant’s property. The court is satisfied that defendant is employed in a family business and his weekly net income is $163, exclusive of occasional tips from customers. His father supplements his income with gifts. He has accumulated savings. The carrying charges on the marital residence including fuel and utility expenses are comparable to the cost for suitable housing for plaintiff and the children. The financial picture presented by the parties is such that if an award were made for the plaintiff and the children which included housing it would impose an unreasonable strain on defendant’s income.
The defendant argues that he would have to sell the marital home in order to meet his obligations. The sale of the house would yield a substantial sum which could be employed in the family business, perhaps to produce additional income. “ There can be no doubt that the court has the power under the proper circumstances to direct temporary possession of the marital home regardless of' title.” (Lerner v. Lerner, 21 A D 2d
Defendant is directed to pay to the plaintiff the sum of $60 per week as support and maintenance for herself and the infant children, payable by check or money order to the plaintiff at her residence commencing November 24, 1972 and every Friday thereafter. In addition, the defendant is directed to pay the mortgage amortization, interest, insurance, repairs and taxes on the marital residence. The plaintiff shall be responsible for the fuel, utility, water and telephone expenses.
In the event that the defendant fails to pay the mortgage, etc., or if he sells the house, the plaintiff may apply for additional alimony and support in an amount sufficient to obtain and maintain living quarters for herself and the children and for a modification of the judgment to be entered herein accordingly.
It is advisable that plaintiff seek employment. This would benefit her and supplement the defendant’s earnings.
Settle judgment on notice and include in the proposed judgment a provision for plaintiff’s counsel fees of $750. Plaintiff’s counsel has already received a fee of $1,000. He is awarded an additional sum of $750 which should be paid to him within 30 days from the date of entry of the judgment herein. Should the defendant require further time to pay this amount then he may submit such a request when the judgment, etc., are submitted for signature. The total fee of $1,750 is rather modest considering the time and effort devoted by plaintiff’s counsel to prior proceedings and to trial of each of three days.