| Vantine v Vantine |
| 2015 NY Slip Op 01700 [125 AD3d 1259] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Maren E. Vantine, Appellant-Respondent, v David C.Vantine, Respondent-Appellant. |
Brian Michael Miga, Utica, for appellant-respondent.
Melvin & Melvin, PLLC, Syracuse (Frank J. Vavonese of counsel), forrespondent-appellant.
Karin Morris, Syracuse, attorney for the child.
Lahtinen, J. Cross appeals from a judgment of the Supreme Court (McDermott, J.),entered November 5, 2013 in Madison County, ordering, among other things, equitabledistribution of the parties' marital property, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were marriedin June 2003, had one child together (born in 2004), and the wife commenced thisdivorce action in December 2010. In May 2011, the husband was directed to paytemporary maintenance of $5,769.23 biweekly and child support of $850 biweekly. Priorto trial, the parties agreed to joint legal custody of the child, primary residence with thewife and liberal parenting time for the husband. A trial ensued as to equitabledistribution, maintenance and child support. Considerable conflicting proof waspresented as to the values of two businesses, the husband's 95% interest in the separateproperty Vantine Imaging, LLC and his 100% interest in the marital property GreekComposites, LLC. Supreme Court awarded the wife $82,525 for Vantine Imaging,representing 2.5% of the increase in value of the husband's share of the company duringthe marriage, and $150,000 for Greek Composites, representing 30% of that company'svalue as of the commencement of the action. The husband was directed to pay $2,700 permonth in child support, 100% of health insurance premiums and related medical costs forthe child, and 100% of [*2]the child's college tuition andassociated expenses. The wife was awarded $6,700 a month in maintenance for a periodof three years. Her application for counsel fees and the cost of expert services wasdenied. The wife appeals and the husband cross-appeals.
The equitable distribution award was within Supreme Court's discretion. The wifecontends that she should have received a larger percentage of the increase in value duringthe marriage of the husband's 95% interest in Vantine Imaging. That company wasformed in 2000, prior to the marriage, and it essentially continued a photographybusiness that had been in the husband's family for several generations. It wasundisputedly separate property (see Domestic Relations Law § 236[B] [1] [d] [1]). "[I]n order for appreciation in the value of this asset to be deemedmarital property subject to equitable distribution, the [wife] was required to demonstratethe manner in which her contributions resulted in the increase in value and the amount ofthe increase which was attributable to her efforts" (Turco v Turco, 117 AD3d 719, 721 [2014] [internalquotation marks, brackets and citations omitted]; see Price v Price, 69 NY2d 8,17-18 [1986]; Van Dyke v Van Dyke, 273 AD2d 589, 592 [2000]).
Supreme Court credited the husband's expert and found that the value of his interestin Vantine Imaging had appreciated by $3,301,000 during the marriage. However, thecourt determined that the husband had a minor role in such appreciation because thecompany was run by a management team and the husband had limited involvement in thecompany's business as he instead pursued his motorcycle racing hobby. The court furtherfound that the wife had made minimal contributions to the husband's limited involvementin the company. These findings involved credibility determinations by Supreme Courtand, deferring to those determinations (see Carlson-Subik v Subik, 257 AD2d859, 862 [1999]), the record supports Supreme Court's finding that the wife failed toprove that she was entitled to a larger award, under the circumstances, for theappreciation of the husband's separate property (see Ellis v Ellis, 235 AD2d1002, 1004 [1997]).
With respect to the parties' remaining marital property, "[i]t is well established thatequitable distribution of marital property does not necessarily mean equal, and SupremeCourt has substantial discretion in fashioning an award of equitable distribution" (Lurie v Lurie, 94 AD3d1376, 1378 [2012]; seeQuinn v Quinn, 61 AD3d 1067, 1069 [2009]). Supreme Court set forth adequatereasons for its distribution of the property and we are unpersuaded that it abused itsdiscretion.
The wife argues that the award of maintenance was insufficient. "[T]he purpose ofmaintenance is to provide temporary support while the recipient develops the skills andexperience necessary to become self-sufficient" (Armstrong v Armstrong, 72 AD3d 1409, 1415 [2010][internal quotation marks and citations omitted]). "The amount and duration of a spousalmaintenance award is within the sound discretion of Supreme Court, after considerationof the enumerated statutory factors, as well as the marital standard of living" (Roberto v Roberto, 90 AD3d1373, 1376 [2011] [citations omitted]). Supreme Court detailed the reasons for itsaward. Among other things, the court discussed the fact that the wife was 44 years old, ingood health, had a Bachelor's degree in German and had worked as a flight attendant.With two semesters of college, she could obtain a teaching certificate, which sheindicated an interest in pursuing. Various potential employment opportunities for thewife were apparently available within commuting range. The court characterized theparties' lifestyle during the short marriage as comfortable and determined that they hadlived well within their means. The wife's contention that she could not return to workbecause she needed to be available for the child was found unconvincing. The fact thatshe had an infant at home from a relationship with another man after the parties separatedin 2008 was noted. The impact of, among other things, the distributive [*3]awards was considered. Although not every statutory factorwas analyzed, nonetheless the court "provide[d] a reasoned analysis for its decision. . . , including a discussion of the factors upon which it relied"(McAteer v McAteer, 294 AD2d 783, 784 [2002] [internal quotation marks andcitation omitted]), and the award was within the court's discretion.
We agree with the wife and attorney for the child that the amount of child supportshould be increased. The husband's adjusted gross income in 2011 was$902,277[FN*] andthe parties do not dispute Supreme Court's calculation that his pro rata share of basicchild support was 91.8%, resulting in an obligation of $21,224 ($1,769 per month) basedon the initial $136,000 of combined parental income for one child (17%) (seeDomestic Relations Law § 240 [1-b] [b] [3] [i]; [c] [2]-[3]). With regard tothe income exceeding $136,000, "the court must determine the parties' child supportobligations for that excess amount by considering the so-called 'paragraph (f)' factors"(Sadaghiani v Ghayoori, 97AD3d 1013, 1013-1014 [2012]; see Domestic Relations Law§ 240 [1-b] [c] [3]; [f]). Although Supreme Court increased child support to$2,700 per month, we find that amount inadequate. The record reflects, among otherthings, that the child has special needs and emotional health issues that consumeconsiderable amounts of the wife's time and require additional resources to adequatelyaddress, the husband's income and financial resources far exceed those of the wife, thechild participated in various trips, recreational and instructive activities, enjoying acomfortable standard of living, and an additional amount is necessary to keep in place thestandard of living that the child would have enjoyed had the marriage continued. Underall the facts and circumstances, the husband's child support obligation should be $5,000per month, which reflects the addition of about 5% of the husband's income over$136,000 (see generally Quinn v Quinn, 61 AD3d at 1072; Bean v Bean, 53 AD3d718, 725 [2008]).
The wife should have been awarded at least part of her counsel fees and expertwitness fees. For matrimonial actions such as this one commenced on or after October12, 2010, there is now a statutory "rebuttable presumption that counsel fees shall beawarded to the less monied spouse" (Domestic Relations Law § 237 [a];see L 2010, ch 329, §§ 1, 3; ch 415). The wife is clearly theless monied spouse by a significant margin. Although Supreme Court noted that the wifereceived generous temporary maintenance, we are unpersuaded under the circumstancesthat such fact adequately rebuts the presumption that the husband should pay at least aportion of the wife's fees (seeSuppa v Suppa, 112 AD3d 1327, 1329 [2013]; Francis v Francis, 111 AD3d454, 455 [2013]; Leonard vLeonard, 109 AD3d 126, 129-130 [2013]; see also Armstrong vArmstrong, 72 AD3d at 1416). The matter is remitted for a hearing to determine anappropriate award of such fees.
Turning to the husband's cross appeal, he argues that he was entitled to a credit onthe equitable distribution for payment of excess temporary maintenance. Although such acredit may be granted, it is not mandatory, and we find no abuse of discretion (seeFox v Fox, 306 AD2d 583, 583-584 [2003], appeal dismissed 1 NY3d 622[2004]; see also Johnson vChapin, 12 NY3d 461, 466 [2009]). The remaining arguments, to the extentpreserved, have been considered and are unavailing.
Peters, P.J., McCarthy and Lynch, JJ., concur. Ordered that the judgment is modified,on the law and the facts, without costs, by increasing defendant's child support obligationto $5,000 per month; matter remitted to the Supreme Court for a hearing to determine anappropriate award to plaintiff of counsel fees and expert witness fees; and, as somodified, affirmed.
Footnote *:His income wasreportedly more than 50% higher in 2009 and 2010 than in 2011.