| Scarpace v Scarpace |
| 2011 NY Slip Op 03937 [84 AD3d 1537] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Mario Scarpace, Respondent, v Diane Scarpace,Appellant. |
—[*1] Arroyo, Copland & Associates, P.L.L.C., Albany (Todd Monahan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Hall, J.), entered September 17,2009 in Saratoga County, ordering, among other things, maintenance to defendant, upon adecision of the court.
In August 2007, after 31 years of marriage, plaintiff (hereinafter the husband) commencedthis action for divorce. Defendant (hereinafter the wife) thereafter counterclaimed for divorce andsought, among other things, an award of maintenance. During the pendency of this action, theparties were able to enter into a stipulation with respect to all issues with the exception of spousalmaintenance.[FN*] According to their stipulation, the marital property was divided such that each party would retainvarious liquid assets valued at approximately $580,000. The wife's share included theunencumbered former marital residence, appraised at $250,000, and a payment received from thehusband in the amount of $110,000. The parties also stipulated, among other things, that theyeach retain their own pension rights as separate property. After a trial, Supreme Court awardedthe wife maintenance in the amount of $200 per week for six years, [*2]effective May 22, 2009. A judgment of divorce was entered inSeptember 2009, and the wife now appeals.
The wife contends that Supreme Court erred in setting the amount of maintenance at $200per week and in limiting its duration to six years. In particular, the wife argues that themaintenance award will impair her ability to save money and, because she will reach herintended retirement age when the maintenance award terminates, she will be forced to rely on hersavings to maintain her standard of living. "The amount and duration of maintenance is an issuegenerally left to the sound discretion of the trial court based upon the enumerated factors set forthin Domestic Relations Law § 236 (B) (6) (a), as well as the predivorce standard of living ofthe recipient spouse" (Ndulo vNdulo, 66 AD3d 1263, 1264 [2009] [citations omitted]; see Hartog v Hartog, 85NY2d 36, 50-51 [1995]; Lorenz vLorenz, 63 AD3d 1361, 1362 [2009]; Quinn v Quinn, 61 AD3d 1067, 1071 [2009]; Dowd vDowd, 58 AD3d 1057, 1058 [2009]). "Maintenance is appropriate where, among otherthings, the marriage is of long duration, the recipient spouse has been out of the work force for anumber of years, has sacrificed her or his own career development or has made substantialnoneconomic contributions to the household or to the career of the payor" (Ndulo vNdulo, 66 AD3d at 1265 [citations omitted]).
At the time of trial, both parties were in their mid-fifties and in generally good health.Throughout their marriage, they lived a financially conservative lifestyle, resulting in no collegeloans for their four emancipated children and no mortgage on the marital home. While thehusband attended college and built his career, the wife worked various part-time and seasonaljobs and devoted her time to tending to the needs of their children. As a result, the wife did notcommence her current full-time occupation with State Farm Insurance until approximately 1996,such that at the time of trial, her annual income was roughly $32,000. The husband, on the otherhand, was earning $104,000 per year as a 32-year employee of the Department of Taxation andFinance. While the husband estimated that he would receive over $5,000 per month from hispension alone upon retirement, the wife estimated that between Social Security retirement andher own pension, she would receive approximately $1,200 per month upon her retirement. Thewife also testified that she is now required to pay for health and homeowner's insurance, schooland property taxes and various utilities and household expenses, all of which previously had beenpaid for by the husband. Finally, the wife testified that, while she used to save $600 per month,since the divorce she can only afford to save $275 per month, and that she has accumulated$8,600 in credit card debt due to their son's college expenses.
In fashioning its award, Supreme Court considered all of these facts and the relevantstatutory factors (see Domestic Relations Law § 236 [B] [6] [a]; Ndulo vNdulo, 66 AD3d at 1265; Lorenz v Lorenz, 63 AD3d at 1362) and, given the lengthof the parties' marriage, the discrepancy in their incomes, the wife's reduced earning potentialbecause of her absence from the workforce and the parties' predivorce standard of living, togetherwith the marital property distributed, we cannot conclude that Supreme Court abused itsdiscretion in awarding the wife maintenance in the amount of $200 per week (see Quinn vQuinn, 61 AD3d at 1071). Upon due consideration of those very same factors, however, weare persuaded that an award of lifetime maintenance is appropriate here. While it is true that theparties enjoyed a modest standard of living during their marriage and that the wife not only cancontribute toward her own support but also has received assets through equitable distribution,one of "the many specific considerations underlying an award of nondurational maintenance. . . is the present and potential future income of the parties" (Gubiotti v Gubiotti, 19 AD3d 893,894 [2005]). Given the identified disparity in [*3]the parties'respective incomes and the wife's reduced earning potential, we find a nondurationalmaintenance award of $200 per week to be warranted (see Kay v Kay, 302 AD2d 711,712 [2003]; see also Holterman v Holterman, 307 AD2d 442, 442 [2003], affd 3NY3d 1 [2004]).
Accordingly, the underlying judgment is modified to the extent that the wife is to receivelifetime maintenance in the amount of $200 per week, retroactive to October 16, 2007, the dateof her answer, that being the earliest date upon which she requested an award (seeDomestic Relations Law § 236 [B] [6] [a]; Spenello v Spenello, 274 AD2d 822,823-824 [2000]). To the extent that the husband seeks a credit for "temporary maintenance" paidduring the pendency of this action (seegenerally Hendricks v Hendricks, 13 AD3d 928, 930 [2004]), while the record reflectsthat he indeed was ordered to pay certain expenses on the wife's behalf (see note 1,supra), the record does not indicate that the wife actually received an award of temporarymaintenance. Hence, no credit to the husband is due.
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by reversing so much thereof as awardeddefendant maintenance is the amount of $200 per week for six years effective May 22, 2009;defendant is awarded lifetime maintenance in the amount of $200 per week effective October 16,2007; and, as so modified, affirmed.
Footnote *: Also, while the action waspending, Supreme Court granted temporary relief to the wife and ordered that the husband paythe 2008 property taxes, homeowner's insurance, the wife's automobile insurance and interimcounsel fees.