Silverman v. Silverman

50 A.D.2d 824, 376 N.Y.S.2d 182, 1975 N.Y. App. Div. LEXIS 11670

Opinion

—In a matrimonial action, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of divorce of the Supreme Court, Westchester County, entered May 5, 1975, after a nonjury trial, as (1) granted plaintiff alimony in the amount of $25 per week, (2) awarded custody of the 20-year-old daughter of the parties to plaintiff, (3) fixed $4,500 as the amount of arrears in the payment of temporary alimony pursuant to a prior order and (4) dismissed his counterclaim for the impression of a constructive trust in his favor upon the marital residence. Judgment modified, on the law and the facts, by (1) deleting the second decretal paragraph thereof and (2) reducing the judgment for arrears to the amount of $3,874. As so modified, judgment affirmed insofar as appealed from, without costs. The age of majority for the purposes of custody is now 18 years (see Domestic Relations Law, § 2); accordingly, we modify the judgment by deleting therefrom the provision as to custody. Defendant established that he paid $1,138 toward the amounts due plaintiff under the prior order of the Supreme Court, Westchester County, entered September 6, 1973. Thus, we have reduced the judgment for arrears by subtracting that amount from $5,012, the figure which we find covers defendant’s obligations under the said prior order. The amount of alimony awarded did not constitute an abuse of discretion (see Domestic Relations Law, § 236; cf. Kover v Kover, 29 NY2d 408). Defendant has failed to establish his claim of an agreement to reconvey the marital residence (Vassal v Vassel, 40 AD2d 713; Fischer v Wirth, 38 AD2d 611). Rabin, Acting P. J., Latham, Margett, Christ and Shapiro, JJ., concur.