Fabrizio v. Fabrizio

125 A.D.2d 634, 510 N.Y.S.2d 9, 1986 N.Y. App. Div. LEXIS 62923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1986
• Status: Published

Opinion

— In a matrimonial action, the defendant wife appeals, as limited by her notice of appeal and brief, from so much of a judgment of the Supreme Court, Suffolk County (Spatt, J., on the judgment; Vitale, J., on the decision), dated November 20, 1984, as (1) imposed a constructive trust for the benefit of the plaintiff husband upon certain real and personal property, and (2) directed the plaintiff husband to pay only the sum of $9,180 as arrears due under a temporary support order.

Ordered that the judgment is modified, on the law, by deleting from the fifth decretal paragraph thereof the figure of "$9,180” and substituting therefor the figure "$13,848”, and by deleting from the sixth decretal paragraph therof the figure of "$9,180”, and substituting therefor the figure "$13,848.” As so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

We modify the judgment to reflect the fact that the trial court improperly credited the plaintiff husband with voluntary payments he made to the parties’ children towards the sum of money owed the defendant wife under a temporary maintenance and support order. We also note that under the circumstances of this case, the court properly imposed a constructive trust for the plaintiff’s benefit upon certain real and personal property held by the defendant (see, Simonds v Simonds, 45 NY2d 233, 241; Sharp v Kosmalski, 40 NY2d 119, 121; Coco v Coco, 107 AD2d 21; Goodman v Goodman, 84 AD2d 344; Saff v Saff, 61 AD2d 452). Thompson, J. P., Brown, Fiber and Kunzeman, JJ., concur.