93 A.D.2d 105 | N.Y. App. Div. | 1983
OPINION OF THE COURT
The parties were married in August, 1970 and have two minor children, Monica born January 22, 1973 and Kenneth born March 10, 1976. During the early years of their marriage, plaintiff
Initially, we reject defendant’s contention that the issues of child support and maintenance have been rendered moot by a subsequent order of the Family Court issued March 12, 1982. Since the record has been certified as accurate, without inclusion of the subject order, matters set out in the briefs but not included in the record may not be considered by this court (Matter of Hayes, 263 NY 219, 221).
Turning to the merits, we find that the trial court abused its discretion by awarding child support of only $70 per week for 11 months of the year and by failing to award plaintiff rehabilitative maintenance. Section 236 (part B, subd 7, par a) of the Domestic Relations Law sets forth five factors the court must consider in making an award of
Nor can we agree that a provision for maintenance is unwarranted to provide plaintiff an opportunity to achieve independence. Here, the court determined that the proposed award was sufficient to enable plaintiff to support herself and her children while simultaneously seeking higher education on a part-time basis (Domestic Relations Law, § 236, part B, subd 6, par a, cl [4]). This conclusion is unrealistic and fails to properly consider plaintiff’s continuing reliance on public assistance. Further, insufficient weight was accredited to plaintiff for her contributions to the career potential of her spouse, and the court too lightly dismissed defendant’s wasteful dissipation of family assets (Domestic Relations Law, § 236, part b, subd 6, par a, els [8], [9]). In our view, the determination should be modified by adding a provision for maintenance of $25 per week for a period of three years.
In view of defendant’s repeated disregard of support orders throughout this proceeding, we are compelled to direct the Family Court, upon remand, to issue a wage assignment order in the sum of $150 per week pursuant to section 49-b of the Personal Property Law. It is unfortunate but evident that such measures are necessary to effectuate the above ■ payments of support and maintenance.
Next, we find the court’s remedy as to support arrearages inadequate. As correctly noted by the court, defendant was never relieved of his obligation to pay support of $115 weekly under the temporary order entered September 19, 1980. Defendant’s contumacious disregard of several sup
We further find that the court erred as a matter of law in concluding that the 1980 Toyota station wagon was not marital property. Section 236 (part B, subd 1, par c) defines marital property as “all property acquired by either or both spouses during the marriage * * * [and] shall not include separate property”. The vehicle was purchased with funds drawn from the parties’ joint savings account. Contrary to the court’s interpretation, the small equity in the vehicle does not determine its status. Without question, the Toyota was marital property and its net value should be ascertained upon remand.
Whether a noncontributory nonvested pension plan constitutes marital property for purposes of equitable distribution presents a novel appellate question in this State. Other jurisdictions have tended to hold that contingent pension rights are not marital property, but mere expectancies (see, e.g., Miller v Miller, 83 Mich App 672; White v White, 136 NJ Super 552; but see Matter of Brown, 15 Cal 3d 838; cf. Recent Developments, Equitable Distribution in New York, 45 Albany L Rev 483). One recent New York case reached a contrary result on the theory that retirement pensions constitute deferred compensation to which the employee has a contractual right (Hebron v Hebron, 116 Misc 2d 803, 808). We agree with this analysis. Here,
An award of counsel fees is proper in this case (see Walsh v Walsh, 92 AD2d 345 [decided herewith]). Plaintiff’s financial plight has been clearly established and defendant must make payment on the $1,000 fixed by prior orders, with any additional award to be made upon remand. We note from the record that defendant paid his attorney $1,000 out of funds from the joint account.
Finally, based upon the entire record, we find that the court abused its discretion in awarding joint custody of the children. “Though the trial court’s determination should be
In essence, the court’s attempted distribution of marital property was improper without first identifying and ascertaining the value of the marital property. A remand is necessary to compute the value of the automobile, the pension plan, and the marital residence, as well as support arrearages and unpaid counsel fees due. An immediate conveyance of the residence to plaintiff should be ordered, and in the event defendant has any balance due to him after the afore-mentioned charges against his share, credit may be given to him against future support and maintenance payments. This will prevent the loss of the entire equity of both parties because of the continually increasing public assistance lien. In the interim, we deem the temporary award of maintenance granted herein to plaintiff to be appropriate, subject to reassessment by the trial court once the noted items have been evaluated (Domestic Relations Law, § 236, part B, subd 6, par a, cl [1]). Additional counsel fees must also be considered upon remand.
The order should be modified, on the law and the facts, by increasing child support to $125 weekly, adding a provision for the payment of temporary maintenance to plaintiff in the sum of $25 weekly for three years, directing Family Court to issue an income deduction order in the sum of $150 weekly, directing the payment of $1,000 in counsel fees previously awarded, reversing so much thereof as pertains to the equitable distribution of marital property, and remitting the matter to Columbia County Family
Kane, J. P., Mikoll, Yesawich, Jr., and Levine, JJ., concur.
Order modified, on the law and the facts, by increasing child support to $125 weekly, adding a provision for the payment of temporary maintenance to plaintiff in the sum of $25 weekly for three years, directing Family Court to issue an income deduction order in the sum of $150 weekly, directing the payment of $1,000 in counsel fees previously awarded, reversing so much thereof as pertains to the equitable distribution of marital property, and remitting the matter to Columbia County Family Court for determination of the value of marital property and award of further counsel fees not inconsistent herewith, and reversing the award of joint custody by awarding sole custody to plaintiff and remitting for a determination of defendant’s rights to visitation, and, as so modified, affirmed, with costs to plaintiff.
Patricia Ellen Reed has been denominated plaintiff and Thomas Francis Reed defendant in the Supreme Court action, although in Columbia County Family Court, she is identified as petitioner and Mr. Reed as respondent.