| Cornish v Eraca-Cornish |
| 2013 NY Slip Op 04856 [107 AD3d 1322] |
| June 27, 2013 |
| Appellate Division, Third Department |
| Anthony J. Cornish,Appellant-Respondent, v Nancy M. Eraca-Cornish,Respondent-Appellant. |
—[*1] Nancy M. Eraca-Cornish, Elmira, respondent-appellant pro se.
Garry, J. Cross appeals from a judgment of the Supreme Court (Cerio Jr., J.), enteredJuly 7, 2011 in Chemung County, ordering, among other things, equitable distribution ofthe parties' marital property, upon a decision of the court.
The parties were married in 1991 and have three children (born in 1991, 1994 and1997). In 2010, plaintiff (hereinafter the husband) commenced this action for divorce,and defendant (hereinafter the wife) filed a counterclaim also seeking divorce. Custodyof the parties' two minor children was resolved by order of the Family Court (Buckley,J.). The husband thereafter withdrew his complaint and consented to a default judgmentof divorce on the grounds asserted in the wife's counterclaim. A nonjury trial wasconducted on the remaining issues of equitable distribution, maintenance, child supportand counsel fees. Supreme Court, among other things, granted the wife exclusivepossession of the marital residence until the youngest child's 21st birthday, ordered thewife to pay $100 per week in maintenance for one year and child support in the amountof $59.09 per week, awarded the husband 30% of the wife's pension and equitablydistributed the parties' marital assets and debts. The husband appeals and the wifecross-appeals.
The husband first challenges Supreme Court's equitable distribution of the maritalassets [*2]and debts. "Trial courts are accordedsubstantial deference in determining what distribution of marital property is equitable,and such determinations will not be disturbed if the court considered the statutory factorsand did not abuse its discretion" (Altieri v Altieri, 35 AD3d 1093, 1094-1095 [2006][citations omitted]; see Robertov Roberto, 90 AD3d 1373, 1375-1376 [2011]). Although the court failed toexplicitly enumerate the requisite statutory factors (see Domestic Relations Law§ 236 [B] [5] [d]), it is clear from the decision that each was appropriately takeninto consideration and we discern no abuse of discretion (see Lurie v Lurie, 94 AD3d1376, 1378 [2012]; Noblev Noble, 78 AD3d 1386, 1387 [2010]; Bean v Bean, 53 AD3d 718, 721-722 [2008]).
With regard to possession of the marital residence, we note that the wife is thecustodial parent of the parties' youngest child and is financially able to pay the mortgageand meet the other maintenance costs of the residence (see Murray v Murray, 101AD3d 1320, 1324 [2012], lv dismissed 20 NY3d 1085 [2013]; Nissen v Nissen, 17 AD3d819, 820 [2005]). At the time of trial, the father was living rent-free with his parents,and the marital residence was encumbered by tax liens and the mortgage such that animmediate sale would not have resulted in proceeds to be distributed. We thus find noerror in Supreme Court's award of exclusive possession to the wife (see Sember v Sember, 72AD3d 1150, 1151 [2010]; Stricos v Stricos, 263 AD2d 659, 660-661[1999]).
Nor do we agree with the husband's argument that Supreme Court erred in allocatingthe parties' outstanding income tax liability, which was attributable in part to the wife'searnings and in part to distributions received by the husband from an inheritance that washis separate property. Each party presented expert testimony as to the appropriateallocation of this liability. The court agreed with the husband's expert that the allocationproposed by the wife's expert imposed a lower marginal tax rate on the wife's earningsthan on the husband's inheritance income. Nonetheless, this favorable treatment wasdeemed appropriate as the wife's earnings were marital income that had provided thefamily's primary means of support throughout the marriage, while the husband'sinheritance was "fortuitously" acquired as separate property and was exhausted afterseveral years of withdrawals.[FN1]While the husband's expert proposed an alternate methodology, Supreme Court isentitled to deference as the trier of fact in the weight that it accords to conflicting experttestimony, and we find that the record supports its determination (see Evans v Evans, 55 AD3d1079, 1080 [2008]; Fuchs v Fuchs, 276 AD2d 868, 869 [2000]).
With regard to the equitable distribution of the parties' credit card debt, we note that,while the record reflects that the debt was largely incurred to meet household expenses,there was also evidence that the husband frequently used the parties' credit cards to makeunnecessary purchases. Thus, given the long duration of the marriage, the sources of thedebt and the parties' relative earning capacities, we find no abuse of discretion inSupreme Court's equal distribution of this debt between the parties (see Biagiotti v Biagiotti, 97AD3d 941, 943-944 [2012]; Evans v [*3]Evans, 55 AD3d at 1081; McKeever v McKeever, 8AD3d 702, 702-703 [2004]). However, as the order fails to precisely articulate howthe division is to be accomplished, we will modify the judgment to clarify that this debtconsists of all those accounts for which statements were included in defendant's exhibitA, and that each party is responsible for one half of the balances shown on thosestatements.
Next, the husband argues that Supreme Court should have awarded him one half ofthe wife's pension, which is marital property to be distributed "based upon considerationsof fairness and the respective situations of the parties" (Redgrave v Redgrave, 13AD3d 1015, 1016 [2004] [internal quotation marks and citation omitted]).[FN2]The record indicates that the parties' arrangement was for the husband to take on theresponsibilities of homemaker and primary caretaker of the children while the wifeprovided financial support for the family, but it further reveals that the husband'salcoholism interfered with his ability to contribute to the household and that his parentsprovided a substantial amount of the children's care. Moreover, the wife testified that,after the children had attained school age, she repeatedly asked the husband to findemployment or return to school. Despite the family's financial difficulties and relianceupon financial assistance from the husband's mother, the husband refused. We find noabuse of discretion in Supreme Court's award of 30% of the pension to the husband inlight of his "limited contribution to the economic partnership of this marriage" (Holmes v Holmes, 25 AD3d931, 934 [2006]).
"The amount and duration of [a maintenance award] are addressed to the sounddiscretion of the trial court, and will not be disturbed provided that the statutory factorsand the parties' predivorce standard of living are considered" (Murray v Murray,101 AD3d at 1322 [citations omitted]; see Biagiotti v Biagiotti, 97 AD3d at 942).Here, given the length of the marriage and the husband's role as caretaker of the childrenand home, an award of maintenance was appropriate (see O'Connor v O'Connor, 91 AD3d 1107, 1108 [2012]; Scarpace v Scarpace, 84 AD3d1537, 1538 [2011]). However, there was scant evidence that the husband sacrificededucational or career opportunities in favor of his role in the family. As stated above, thehusband refused to seek employment or further his education after the parties' childrenwere in school, despite the wife's requests that he do so and the family's financialdistress. Additionally, he refused to take advantage of several opportunities to advancehis education, including utilizing tuition credits available through the wife's employment.Moreover, the record reveals that the husband had stopped drinking before the divorce,had no mental or physical barriers to employment, and was operating an eBay business atthe time of trial. Although he provided no accounting of this business, his statement ofnet worth reflects an income level that cannot be attributed to his newspaper delivery job,maintenance and child support alone. Accordingly, we find no error in the amount ofannual income that Supreme Court imputed to the husband. Likewise, the recordsupports the income imputed to the wife, based upon her employment history, the statusof her private law practice and her teaching stipend.
Supreme Court did not abuse its discretion in precluding the husband's testimonyregarding his search for employment, as he failed to provide a meaningful response to thewife's interrogatory concerning this issue or a reasonable excuse for this failure (seeRobustelli v [*4]Robustelli, 262 AD2d 390, 390[1999]; compare Kumar vKumar, 63 AD3d 1246, 1248-1249 [2009]). The record also supports the court'sfinding that the family's financial stability before the divorce was "illusory" and that theirrelatively high standard of living resulted in large part from spending beyond their means(see McCaffrey v McCaffrey, 107 AD3d 1106, 1107 [2013]). Given all of thecircumstances, we find no abuse of discretion as to the amount and duration of themaintenance award (seeWilliams v Williams, 99 AD3d 1094, 1096 [2012]; Roberto v Roberto,90 AD3d at 1376).
Similarly, the child support award was appropriate based upon the income imputed tothe parties and was consistent with the provisions of the Child Support Standards Act(see Domestic Relations Law § 240 [1-b]). However, as the partiesstipulated that the wife would pay maintenance and child support through the ChemungCounty child support collection unit rather than directly to the husband, the order will bemodified to provide for such payment in the manner directed by that entity.[FN3]
"Whether counsel fees should be awarded is left to the sound discretion of [the trialcourt]" (Strang v Strang, 222 AD2d 975, 979 [1995] [citations omitted]). Thehusband's counsel was hired as substitute counsel in April 2010, after the statement ofnet worth was filed, but his counsel did not file a retainer agreement until after SupremeCourt ordered him to do so in September 2010. The record thus supports the court'sdetermination that the husband's counsel failed to substantially comply with 22 NYCRR1400.3 and is precluded from seeking a fee (see Bentz v Bentz, 71 AD3d 931, 931-932 [2010]).
Finally, "it is the responsibility of the party seeking the [qualified domestic relationsorder] to submit [such order] to the court on notice" (Auriemmo v Auriemmo, 87 AD3d 1090, 1091 [2011]).Accordingly, the order appealed from must be modified to direct that the husband shallsubmit a qualified domestic relations order to Supreme Court.
Rose, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is modified, onthe law and the facts, without costs, by (1) providing that the parties' credit card debtconsists of all those accounts for which statements were included in defendant's exhibitA, and that each party is responsible for one half of the balance due on these accounts asshown on the statements, (2) directing that payments of child support and maintenanceshall be made through the Chemung County child support collection unit in such manneras the unit may direct, and (3) ordering plaintiff to submit a qualified domestic relationsorder to Supreme Court, and, as so modified, affirmed.
Footnote 1: Supreme Courtacknowledged that the husband used part of his inheritance income for such maritalneeds as vehicles and a down payment on the marital residence, and granted him aseparate property credit for the down payment (see Noble v Noble, 78 AD3d at1389).
Footnote 2: Although the wife hadearned part of this pension before the marriage, she agreed to treat the pension earned todate as marital property.
Footnote 3: The wife asserts thatsuch payment is no longer appropriate, as she is now exclusively self-employed and thushas no employer through which an income execution could be effected. However, thiscircumstance does not preclude her compliance with the stipulation by making herpayments through the support collection unit (see Domestic Relations Law§ 240 [2]; Social Services Law §§ 111-g, 111-h; CPLR 5242).