Seraita v. Seraita

Kupferman, J. P. (dissenting).

The parties were married on March 23, 1980 and separated October 5, 1981, 18 months later, when the plaintiff husband left the marital apartment, which was the defendant wife’s apartment prior'to the marriage. The plaintiff was 34 years of age, and the defendant was 30 years of age at the time of the action. When the plaintiff left, he paid the rent for the month of October, 1981 of $619, the medical insurance coverage for the wife until January, 1982, and her religious affiliation membership through September, 1982. When the parties were married, the wife gave up her employment. She has a college degree in education and marketing, but she has not since sought employment. The wife applied for pendente lite support, and by order March 9, 1982, the court inexplicably directed plaintiff to pay $100 a week for defendant’s support and the rental payments on the apartment, which previously, before the marriage, had been paid by the wife, in the amount of $619 a month, and to continue life insurance and health and hospital insurance. The plaintiff claims that when he served the defendant with a notice of action for divorce on or about October 5, 1981, she changed the locks on the apartment and effectively dispossessed him. He moved to his parents’ home and applied to the court for access to the apartment to remove his belongings. The plaintiff husband was unemployed at the time of the separation but was receiving unemployment insurance of $125 a week. He has, however, assets derived from before the marriage of some $33,000 in savings accounts, and was earning $338 a week at the time that the defendant wife brought on this motion for the judgment for support arrears in the sum of $12,600 and for a payroll deduction of $100 per week. The wife has $2,500 in the bank; she has a *727Saks Fifth Avenue charge account. In the interim, the husband has obtained his own apartment and alleges that his expenses total some $400 a week, or more than his income. Based on the earlier order at Special Term for the maintenance payments aforesaid, the court at Special Term granted enforcement of the substantial amounts here involved. The original direction was in my opinion an abuse of discretion. While it may have been that because the husband had some more money in the bank than the wife did, he could have been directed to pay maintenance for several months until the wife obtained employment, to enforce the payment of the amounts here involved is contrary to the intent of the provisions of section 236 (part B, subd 6) of the Domestic Relations Law. In accordance with the provision of section 236 (part B, subd 6, par b) which requires that the “factors it considered” be set forth by the court, all that we have here is that both parties were unemployed, that there were no children of this brief marriage, and that the husband had more money in the bank than the wife did. This is an insufficient basis for the determination made, and the orders at Special Term should be reversed, and the motions for the wage deduction order and a money judgment denied. The cross motion of the plaintiff husband for a trial preference, in view of the inordinate imposition upon him, should be granted.