SHINK v. SHINK


140 A.D.2d 506 (1988)

Shari Shink, Respondent-Appellant, v. Craig Shink, Appellant-Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.


Ordered that the judgment is modified, on the law and the facts and as a matter of discretion, by (1) deleting the third decretal paragraph and substituting therefor a provision which states "ORDERED and ADJUDGED that the defendant shall have unsupervised visitation rights away from the marital home on the first weekend of each month from Friday at 7 P.M. to Sunday at 7 P.M. and on the third Sunday of each month from 10 A.M. to 7 P.M. and on the second days of Rosh Hashanah and Succoth from 1 P.M. to 6 P.M.; and it is further", (2) deleting the fourth decretal paragraph and substituting therefor a provision which states "ORDERED and ADJUDGED that the defendant shall pay to the plaintiff as maintenance the sum of $150 per week for a period of five years from the date of the entry of the judgment or until the death of either party or remarriage of the plaintiff, whichever occurs first, and the defendant shall pay child support in the sum of $150 per week until the child of the marriage attains the age of 21 or is sooner emancipated; and it is further", (3) adding a provision to the sixth decretal paragraph thereof providing that the defendant shall maintain a health insurance policy for the benefit of the plaintiff, (4) adding to the list of items to which the defendant is entitled set forth in the eighth decretal paragraph thereof the words "The bedroom set", (5) adding a decretal paragraph providing that the defendant pay one half of the outstanding balance of the plaintiff's Visa card debt at the time of the judgment, up to, but not exceeding $500; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, we find that the court's granting of visitation for the limited period of two hours per week from 2:00 to 4:00 P.M. each Sunday denies the defendant and his infant daughter, who was over two years old at the conclusion of the trial, sufficient opportunity for meaningful interaction. The trial court also erred in refusing the defendant's request for overnight visitation. The record is devoid of any evidence supporting the imposition of such restrictive visitation rights. Accordingly the defendant should be granted unsupervised visitation away from the marital home on the first weekend of each month from 7:00 P.M. Friday to 7:00 P.M. Sunday. In addition, we find that the defendant should be granted visitation on the third Sunday of each month from 10:00 A.M. to 7:00 P.M. The court's award of visitation rights on Rosh Hashanah and Succoth shall remain the same. We, however, agree with the trial court that midweek visitation would not be appropriate at this time.

We also find that under the circumstances of this case the award of maintenance for an unlimited duration should be modified. The plaintiff and the defendant were married for a relatively short duration, i.e., four years. The 31-year-old plaintiff holds a degree in fashion merchandising and was employed in this field during part of the marriage. We note that when asked by the trial court if she would again be able to obtain employment in this field, the plaintiff responded "I am sure if I tried". Accordingly, we find that it is appropriate to limit the duration of defendant's obligation to pay maintenance to a period of five years (see, Sorrentino v Sorrentino, 116 A.D.2d 564).

We have reviewed the financial status of the parties and find that the award of maintenance should be in the amount of $150 per week. In addition, we find that the defendant, who is employed, should be directed to maintain a health insurance policy for the benefit of the plaintiff (see, Schussler v Schussler, 109 A.D.2d 875, 877).

The trial court awarded child support in the sum of $50 per week to be increased to $100 per week when the child attains the age of seven years. We find this provision which allows for a modification of the defendant's child support obligation at a future time without a reconsideration of the circumstances extant at that time, to be improper (see, Majauskas v Majauskas, 61 N.Y.2d 481, 494-495; Bizzaro v Bizzaro, 106 A.D.2d 690; Lesman v Lesman, 88 A.D.2d 153). Therefore based upon the needs of the infant child and the financial ability of the defendant to meet such needs, we find that the defendant's child support obligation should be in the amount of $150 per week until the child of the marriage attains the age of 21 or is sooner emancipated. In addition, we find that the trial court properly directed the defendant to pay the child's prior medical bills.

We further find that the defendant should be directed to pay one half of the outstanding balance on the plaintiff's Visa credit card debt existing at the time of the judgment. We note that at trial there was testimony that that debt relates to a trip taken by both the plaintiff and the defendant as well as for clothing purchased for the infant child. The defendant's obligation to pay one half of the outstanding Visa balance at the time of judgment shall, however, not exceed the amount of $500.

The plaintiff concedes that the bedroom set was purchased by the defendant with his own funds prior to the marriage. Accordingly, the trial court erred in awarding this separate property to the plaintiff (see, Domestic Relations Law § 236 [B] [d] [1]).

We have examined the parties' remaining contentions and find them to be either unpreserved for appellate review or without merit.


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