| Roberto v Roberto |
| 2011 NY Slip Op 09234 [90 AD3d 1373] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Tina Roberto, Respondent-Appellant, v Kevin Roberto,Appellant-Respondent. |
—[*1] John J. Greco, Kingston, for respondent-appellant.
Stein, J. Cross appeals from a judgment of the Supreme Court (Work, J.), entered August 18,2010 in Ulster County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1980and have one child (born in 1986). Shortly after the husband left the marital residence inSeptember 2008, the wife commenced this divorce action requesting, among other things,equitable distribution of the parties' marital property and counsel fees, and she subsequentlymade an application for maintenance. The husband did not challenge the wife's grounds fordivorce. After a nonjury trial on the issues of equitable distribution, maintenance and counselfees, Supreme Court granted the wife a divorce and directed, among other things, that the partiesequally divide their real property, that the husband pay maintenance to the wife for a total of sixyears[FN1]and that the husband pay counsel fees on behalf of the wife in the amount of $10,000. The partiesnow cross-appeal and we affirm.[*2]
We begin with a brief financial history of this marriage.The parties were married for approximately 28 years at the time of the commencement of thisaction; the husband was then 49 years of age and the wife was 47 years of age. Although theywere each employed full time after the birth of their child, they were able to share child-careresponsibilities by working different shifts. They initially purchased a home for $45,000, towhich the husband made improvements with the wife's assistance. They subsequently sold thathome at a substantial profit and built the marital residence in Ulster County; that property had avalue of $650,000 at the time of trial. In August 2008, the parties purchased a condominium inMiami, Florida for $425,000, partially financing the purchase with a $300,000 home equity loanagainst the marital residence. The parties stipulated that the value of the condominium was$355,000 as of the date of trial.
Throughout much of the marriage, the wife earned approximately $20,000 to $30,000 peryear, but was laid off on two occasions. During one layoff period, she obtained an insurancebroker's license. The husband worked as a window and door installer and ultimately began hisown business—KJR Window Concepts, Inc.—for which he performed installationsfor Home Depot customers and also contracted out jobs to independent contractors. In 2005, thewife left her job at an insurance company to work from home for KJR doing bookkeeping,answering telephones, fielding customer complaints and faxing orders to the independentcontractors. Although the parties' tax returns reflected modest wages, the wife testified that themajority of the parties' personal expenses were paid by KJR. The record demonstrates that theparties were able to live mortgage-free in a $650,000 home, drive expensive luxury cars andvacation extensively.
After the husband moved out of the marital residence in September 2008, the wife continuedto run the business and the husband continued to perform installations. According to the wife, thehusband agreed that she would be entitled to receive the income generated by the businessthrough the work of the independent contractors and she apparently paid herself over $13,000between September and November 2008. In December 2008, the husband moved to the Floridacondominium with his paramour and ceased performing installations for KJR. The wife testifiedthat she continued working, the independent contractors performed installations as needed andthe husband agreed that she would be paid $1,000 per week.
The husband returned to New York in April 2009 and resumed performing installations forHome Depot through KJR. The following month, after working for several weeks withoutreceiving payment therefor from the wife and upon discovering the amount of checks written bythe wife over the previous several months, he took control of the business checking account andarranged to have its mail forwarded to his new address. At that point, the wife, allegedly unableto continue to perform her duties and assuming that the husband no longer intended to pay her,stopped working for the business and began collecting unemployment.[FN2]She was unemployed as of the date of trial, although she was in the process of starting her ownwindow installation business. The husband continued performing installations for Home Depotand hired a bookkeeper for KJR. However, in July 2009, he received a letter from Home Depotterminating its relationship with KJR effective in October 2009. The husband paid himself$22,000 in [*3]August 2009. At the time of the trial, he wasfinishing his last Home Depot job and was planning to permanently move to Florida with hisparamour.
When equitably distributing marital property, the court must consider a variety of factorsincluding, among others, "the income and property of each party at the time of marriage, and atthe time of the commencement of the action; . . . the loss of health insurancebenefits upon dissolution of the marriage; . . . any award of maintenance. . . ; . . . the probable future financial circumstances of each party;[and] the wasteful dissipation of assets by either spouse" (Domestic Relations Law § 236[B] [5] [d]; see Noble v Noble, 78AD3d 1386, 1387-1388 [2010]). Here, both parties take issue with Supreme Court'sdetermination that the marital residence and the Florida condominium should be sold and theproceeds divided equally. The husband contends that he should have received a larger share ofthe value of the marital assets—because, among other things, he was primarily responsiblefor the construction of the marital residence and performed the majority of the work forKJR—and that Supreme Court erred in finding that he had wastefully dissipated maritalassets. Conversely, the wife argues that, based upon the husband's wasteful dissipation of KJR,the marital residence should have been awarded to her in its entirety, with the remainder of theparties' assets being divided equally.
It is apparent that, in making its determination, Supreme Court properly considered theappropriate statutory factors and applied them to the evidence. For example, while it isundisputed that the husband performed much of the physical labor in connection with theconstruction of the marital residence, the evidence also demonstrated that the wife providedsubstantial assistance in a variety of ways. Likewise, the record supports the court's findings thatthe wife made significant contributions to KJR and that the marriage "was a true economicpartnership" until the husband moved out of the marital residence. The court also discredited thehusband's testimony that the loss of business from Home Depot was economically driven, andreasonably inferred that it was a result of the husband's abandonment of KJR from December2008 to April 2009, and his subsequent exclusion of the wife from its operation, whichconstituted a wasteful dissipation of marital assets.[FN3]Contrary to the husband's contention, Supreme Court recognized that the parties withdrewcorporate funds at the times during which they were each, respectively, in control of thecheckbook. The court also considered the duration of the marriage, the marital standard of livingand the probable future financial circumstances of the parties—including the wife's loss ofhealth insurance—in making its equitable distribution award. Given the substantialdeference we accord trial courts in fashioning an award of equitable distribution (see Stahl v Stahl, 80 AD3d 932,933 [2011]; Noble v Noble, 78 AD3d at 1388; Altieri v Altieri, 35 AD3d 1093, 1094, 1095 [2006]), we find nobasis to disturb Supreme Court's distribution of the marital assets here.
We also reject both the wife's argument that Supreme Court should have awarded herpermanent maintenance and the husband's contention that any award of maintenance was error. Itis well settled that " '[t]he purpose of maintenance is to provide financial support for the recipientspouse while he or she gains the skills and employment necessary to become self-sufficient' "(Dowd v Dowd, 58 AD3d 1057, 1058 [2009], quoting Zwickel v Szajer, 45AD3d [*4]1222, 1223 [2007]; accord McAuliffe v McAuliffe, 70 AD3d 1129, 1134 [2010]). Theamount and duration of a spousal maintenance award is within the sound discretion of SupremeCourt (see St. Louis v St. Louis, 86AD3d 706, 709 [2011]), after consideration of the enumerated statutory factors, as well asthe marital standard of living (see Domestic Relations Law § 236 [B] [6] [a];Hartog v Hartog, 85 NY2d 36, 50-51 [1995]; St. Louis v St. Louis, 86 AD3d at709).
Here, in awarding the wife durational maintenance, Supreme Court considered, among otherthings, the duration of the marriage, the parties' ages, their predivorce standard of living, thedisparity between their respective earning capacities,[FN4]the wife's ability to become self-sufficient through the utilization of her insurance license and herexperience in the window installation business, the husband's wasteful dissipation of maritalassets, and the parties' income and property, including the award of equitabledistribution.[FN5]In our view, the award of durational maintenance was a sound exercise of the court's discretionand we decline to disturb it (see Keil vKeil, 85 AD3d 1233, 1238 [2011]).
Nor do we discern any abuse of discretion in the counsel fee award to the wife in view of,among other things, the disparity in the parties' earning abilities and defendant's conductthroughout these proceedings including, but not limited to, his failure to pay maintenance to thewife as directed, which necessitated a contempt application (see Noble v Noble, 78 AD3d1390; Bellinger v Bellinger, 46AD3d 1200, 1203 [2007]).
The parties' remaining contentions have been considered and are unavailing.
Spain, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Supreme Court directed thehusband to pay the wife $500 weekly until the marital residence was sold and $100 weeklythereafter until May 31, 2015.
Footnote 2: Although Supreme Courtordered the husband to pay temporary maintenance to the wife in June 2009, he did not make anysuch payments until October 2009, shortly after the commencement of the trial.
Footnote 3: Notably, Supreme Courtcommented in its decision that certain testimony of the husband "totally destroyed hiscredibility."
Footnote 4: Based upon testimony of thehusband as to his past earnings as an independent contractor and the income of the installers whohad worked for him, Supreme Court imputed income to the husband of $80,000 per year.
Footnote 5: Supreme Court specificallynoted that, in addition to the division of the real property, each party received one half of certainIRA accounts and other liquid assets.