Opinion
April 16, 1990
Appeal from the Supreme Court, Nassau County (Lowey, J.H.O.).
Ordered that the judgment is modified, on the law and the facts and as a matter of discretion, (1) by deleting from the fifth decretal paragraph thereof the provision "and the plaintiff and the defendant shall each be liable for one-half of all medical, hospital and dental costs incurred for the benefit of the children, in excess of the first $500.00, not covered by insurance", (2) by deleting from the eighteenth decretal paragraph thereof "the sum of $31,895.53", and substituting therefor "the sum of $21,686.58", based upon a finding that the wife is entitled to a 25% share in the stock appreciation of the husband's securities portfolio and his flea market business, and (3) by adding a provision thereto directing the plaintiff wife to execute the necessary tax forms to permit the husband to claim the children of the parties as dependents pursuant to Internal Revenue Code § 152 (e) ( 26 U.S.C. § 152 [e]); as so modified the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Upon a review of the record, we find that the court did not err in determining that the plaintiff wife was entitled to share in the stock appreciation represented by the increase in value of the defendant husband's securities portfolio which constituted separate property (see, Price v. Price, 69 N.Y.2d 8). However, we find that the percent of appreciation granted to the wife and the share of the husband's flea market business awarded to her is excessive to the extent indicated and we have modified the distributive award to reduce them accordingly (see, Maloney v Maloney, 137 A.D.2d 666; Morton v. Morton, 130 A.D.2d 558).
The plaintiff wife concedes that the court erred in setting the value of the funds contained in marital joint account which were retained by her when the parties separated. Therefore, we adjust the value of the account to reflect the balance in that account when it was closed. Based on these adjustments, we find that the distributive award to the wife should be modified by reducing it to $21,686.58.
It was error for the court to direct the defendant to pay one half of all unreimbursed medical expenses for the children in excess of the first $500, since such payments are in the nature of improper, open-ended obligations (see, Matter of Dapolito v Dapolito, 150 A.D.2d 375; Megally v. Megally, 142 A.D.2d 721; Keehn v. Keehn, 137 A.D.2d 493; Armando v. Armando, 114 A.D.2d 875). This determination does not preclude the plaintiff from applying to the Supreme Court or the Family Court for any unreimbursed medical expenses for the children of the marriage (see, Matter of Dapolito v. Dapolito, supra; Armando v. Armando, supra, Troiano v. Troiano, 87 A.D.2d 588).
The plaintiff wife concedes that the defendant may take income tax exemptions for the parties' children. Accordingly, we direct her to execute the necessary tax forms required under the Internal Revenue Code (see, Bennett v. Bennett, 140 A.D.2d 400; see also, 26 U.S.C. § 152 [e]).
The defendant's remaining contentions are without merit.
Finally, we reject the wife's contention in her cross appeal. The trial court properly determined that the best interests of the children are served by regular fixed and uninterrupted visitation with the defendant. Mangano, P.J., Kunzeman, Kooper and Eiber, JJ., concur.