STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

WARREN A. TERRILL,


Plaintiff,


-vs- Index #H-05590


SANDRA E. TERRILL,


Defendant.


 



DANIEL R. POLOWY, ESQ.

for Plaintiff



SPOTO & SLATER

(Richard V. Slater, Esq.

of Counsel) for Defendant



DECISION AND ORDER


GERACE, J.


The only issues left in this matrimonial matter are claims by the mother, for family allowance and $2,886.80 in counsel fees. This marriage of some 21 years duration produced two fine boys, Nathan, born March 15, 1980, and Matthew, born December 18, 1987.


Custody is joint, placement with the father, with liberal visitation with the mother.

The father earns approximately $40,000 at his primary job; receives a VA pension of $3,864 and has earnings of approximately $2,000 from a part-time job.


The wife had earnings of about $15,000 from her two part-time jobs, one of which was as a substitute jailer at the County Jail. However, the jail job is not expected to produce as much income for her in the future because the female for whom she substituted has returned to full time employment.


The husband says she has reached her maximum at her job with the County and should seek full time work elsewhere. The Court's decision cannot be based on that contention. As plaintiff knows from his own job with state government, public sector positions offer more security than those in private sector.


Plaintiff asks the Court to deny defendant's request for counsel fees and family allowance because defendant will receive approximately one-half of the marital assets. That alone cannot be the basis of a decision.


The evidence was clear that it was she who was most responsible for the marital breakup; that her spouse may not have achieved the biblical admonition of forgiving "7 times 70" but he did better than most. But this cannot be a basis either.


Because the Court does not want to see the children disadvantaged when they are with their mother, the Court sets a family allowance of $80.00 weekly. The husband earns substantially more than the wife, and the children will spend part of each week with her. The mother, however, will have the benefit of not having to pay support to the husband.


COUNSEL FEES


Defendant's attorney has already received $1,000.00 and seeks $2,880 more to cover fees and $1,032 in disbursements. His hourly rate is $120.00 compared to a rate of $75.00 charged by plaintiff's attorney.


Based on all the circumstances, the Court awards a fee of $1,000 plus one-half of the disbursements for appraisals, to be paid within 30 days.


The Court notes that since November 2, 1994, plaintiff has had possession of the moneys to be paid over to defendant under the stipulation. Unless plaintiff has a reason acceptable to this Court for withholding those funds, he shall pay to defendant an amount equal to the interest the bank has or would have paid if deposited in a savings account.


This is the Decision and Order of this Court. No further order is necessary.


Dated: February 6, 1995

Mayville, New York



 

JOSEPH GERACE

Justice of Supreme Court