| Maggiore v Maggiore |
| 2012 NY Slip Op 00164 [91 AD3d 1096] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| Julie Maggiore, Respondent, v Joseph Maggiore,Appellant. |
—[*1] Richard L. Gumo, Delhi, for respondent.
Lahtinen, J. Appeals from an order and a judgment of the Supreme Court (Peckham, J.),entered September 27, 2010 and November 23, 2010 in Delaware County, ordering, among otherthings, equitable distribution of the parties' marital property and maintenance to plaintiff.
In this matrimonial action, defendant contends that Supreme Court abused its discretion indetermining that he had wastefully dissipated marital assets, failed to find economic fault byplaintiff, and erred in granting plaintiff maintenance. The parties were married in 1996, they arethe parents of two children (born in 1992 and 1996), and defendant commenced a divorce actionin 2008. He discontinued his action in December 2009 and plaintiff immediately commenced thecurrent action. Several orders were entered while the actions were pending, including mutualorders of protection as well as an order that defendant continue paying the mortgage on themarital residence and that he keep plaintiff on his health insurance. Defendant, however, stoppedthe mortgage payments resulting in a foreclosure proceeding, and he removed plaintiff from hishealth insurance at a time when she was recovering from back surgery. In an attempt to preventforeclosure on the home, defendant was permitted, with plaintiff's consent, to withdraw someretirement funds, which he instead used for his personal expenses. He also violated the protectiveorder resulting in a multicount indictment, and he pleaded guilty to criminal contempt in thesecond degree.
At the outset of trial, the parties stipulated to grounds for divorce and custody, with a [*2]bench trial ensuing on the issues of maintenance, equitabledistribution and child support. Although Supreme Court rejected plaintiff's contention thatdefendant's action constituted egregious conduct that should affect equitable distribution, it didfind wasteful dissipation by defendant and was unpersuaded by defendant's assertion of economicfault by plaintiff. The court awarded plaintiff the marital residence (which was characterized bySupreme Court as essentially worthless in light of foreclosure and other judgments) and her salonbusiness, as well as a distributive award of $14,341.71. Plaintiff received maintenance of $250per week for six years and child support was set at $182 per week. Defendant appeals.[FN*]
The record supports Supreme Court's determination that defendant wastefully dissipatedmarital assets, which is one of the statutory factors in equitable distribution analysis (seeDomestic Relations Law § 236 [B] [5] [d] [12]; Noble v Noble, 78 AD3d 1386, 1388-1389 [2010]). During thedivorce actions, defendant failed to make mortgage payments resulting in foreclosure on aprimary marital asset, and he used money from his retirement account for personal reasons ratherthan to prevent foreclosure. He further permitted vehicles purchased during the marriage to berepossessed and a judgment to be entered for unpaid marital debt. Defendant repeatedly violatedcourt orders resulting in a substantial reduction in marital assets.
Defendant's assertion that Supreme Court erred in not finding economic fault by plaintiff isunpersuasive. To be sure, this matrimonial action was replete with acrimoniousness anduncooperative postures by both parties. However, Supreme Court was in the best position toconsider the credibility of the parties' various accusations (see Matter of Lopez v Robinson, 25 AD3d 1034, 1035-1036[2006]), and its decision not to attribute economic fault to plaintiff in its equitable distributionanalysis was not an abuse of discretion (see Farkas v Farkas, 11 NY3d 300, 310 [2008]). Supreme Court'sdetermination regarding equitable distribution has ample record support.
The requisite statutory factors were considered by Supreme Court regarding maintenance,and the award was well within its discretion (see Fosdick v Fosdick, 46 AD3d 1138, 1140 [2007]; Brzuszkiewicz v Brzuszkiewicz, 28AD3d 860, 862 [2006]). The court noted, among other things, defendant's superior earningpower, plaintiff's back problems and the potential affect on her ability to continue working as ahair stylist, her need to train for other work, the length of the marriage, the amount of time beforethe children reached the age of majority, and plaintiff's role as primary caretaker of the children.
Spain, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the appeal from theorder entered September 27, 2010 is dismissed, without costs.[*3]
Ordered that the judgment entered November 23, 2010 isaffirmed, without costs.
Footnote *: Defendant's appeal from theSeptember 2010 order must be dismissed since it was subsumed by the appeal from theNovember 2010 judgment (seeArmstrong v Armstrong, 72 AD3d 1409, 1410 n 1 [2010]).