| O'Connor v O'Connor |
| 2012 NY Slip Op 00170 [91 AD3d 1107] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| Christine A. O'Connor, Respondent-Appellant, v Michael ThomasO'Connor, Appellant-Respondent. |
—[*1] Cynthia Feathers, Glens Falls, for respondent-appellant.
Lahtinen, J. (1) Appeal from that part of an order of the Supreme Court (Nolan Jr., J.),entered January 20, 2011 in Saratoga County, which partially granted plaintiff's motion for anaward of counsel fees, (2) cross appeals from a judgment of said court, entered April 8, 2011 inSaratoga County, ordering, among other things, maintenance to plaintiff, and (3) appeal from anorder of said court, entered July 11, 2011 in Saratoga County, which granted plaintiff's motionfor an award of counsel fees.
The parties in this matrimonial action were married in 1986, they have three children (oneborn in 1990 and twins born in 1992), and plaintiff commenced this action in August 2009premised upon defendant's abandonment. Following a nonjury trial, Supreme Court rendered adetailed decision in January 2011 which, as relevant to this appeal, awarded plaintiffmaintenance of $1,000 per month until she is eligible for Social Security retirement benefits inJanuary 2022, subject to earlier termination upon various conditions, including if she remarries orthe commencement of her receipt of her share of defendant's pension. In its decision and order,the court also partially granted plaintiff's motion for counsel fees, awarding $7,500 of the over$20,000 in then unpaid counsel fees and disbursements. These awards were included in the April2011 judgment of divorce. Defendant, challenging the duration of maintenance, appealed from[*2]the judgment,[FN1]which prompted plaintiff to cross-appeal therefrom and to move for an award of appellatecounsel fees. Supreme Court, in July 2011, granted plaintiff $900 in counsel fees for making themotion and $9,000 for appellate counsel fees. Defendant appealed from the July 2011 order.
While our authority is as broad as Supreme Court's regarding maintenance (see Redgrave v Redgrave, 13 AD3d1015, 1019 [2004]), we nonetheless generally accord deference to Supreme Court'sdetermination regarding the amount and duration of maintenance " 'as long as the court considersthe statutory factors and provides a basis for its conclusion' " (Keil v Keil, 85 AD3d 1233, 1238 [2011], quoting Blay v Blay, 51 AD3d 1189,1191-1192 [2008]). "Maintenance is appropriate where, among other things, the marriage is oflong duration, the recipient spouse has been out of the work force for a number of years, hassacrificed her or his own career development or has made substantial noneconomic contributionsto the household or to the career of the payor. The fact that a wife has the ability to beself-supporting by some standard of living does not mean that she is self-supporting in thecontext of the marital standard of living" (Ndulo v Ndulo, 66 AD3d 1263, 1265 [2009] [citations omitted]; see Bean v Bean, 53 AD3d 718,723 [2008]).
Here, Supreme Court discussed each of the statutory factors. This was a long-term marriageof 24 years and plaintiff was 50 years old. Although she had a marketing degree and had a jobrelated to her degree early in the marriage, she passed on a promotion because defendant wouldnot move, and later she gave up her position in order to raise the parties' children. She has notworked in marketing since early 1992. At the time of the divorce, she worked as a school aideand her earnings for 2009 and 2010 were about $14,000 and $18,000, respectively. SupremeCourt accepted her testimony that she would need considerable educational updating of anunknown duration and cost before being able to return to a marketing position or anotherprofessional field. Defendant's 2010 income was about $78,854, but Supreme Court noted that hedid not work available overtime which, in the prior four years, resulted in income levels betweenapproximately $95,000 and $117,000. Defendant's child support obligation for the oldest childended in August 2011 and the remaining obligation ceases in June 2013. In light of SupremeCourt's discussion of the pertinent factors, the length of the marriage, career sacrifice by plaintiff,large discrepancy in current earning power and plaintiff's age, we are unpersuaded that theduration of maintenance determined by Supreme Court should be modified.
Defendant argues that it was error to order him to pay counsel fees for the underlying actionand the appeal. It is within the discretionary power of Supreme Court to award counsel fees and,in doing so, "a court should review the financial circumstances of both parties together with allthe other circumstances of the case, which may include the relative merit of the parties' positions"(DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; see Nelson v Nelson,290 [*3]AD2d 826, 828 [2002]).[FN2]Supreme Court discussed the financial position of the parties, including defendant's superiorearning capacity, and otherwise adequately explained its reasons for awarding counsel fees. Wenote that, although plaintiff did not pursue her cross appeal, plaintiff's counsel stated in anaffirmation that the cross appeal involved a narrow issue that appellate counsel had indicated didnot affect her fee. We find no abuse of discretion by Supreme Court in the award of counsel fees(see Johnson v Chapin, 12 NY3d461, 467 [2009]; Cohen vCohen, 73 AD3d 832, 834 [2010]; Lewis v Lewis, 6 AD3d 837, 840 [2004]).
Spain, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the appeal from theorder entered January 20, 2011 is dismissed, without costs. Ordered that the judgment enteredApril 8, 2011 and the order entered July 11, 2011 are affirmed, without costs.
Footnote 1: Defendant acknowledges thathis earlier appeal from the January 2011 order must be dismissed since it is subsumed by theappeal from the April 2011 judgment (see Quinn v Quinn, 61 AD3d 1067, 1069 n 1 [2009]).
Footnote 2: The current action wascommenced prior to the recent amendment to Domestic Relations Law § 237 (a)(see L 2010, ch 329, § 1), and the parties do not contend that the amendedlanguage applies to this case.