| Howard v Howard |
| 2007 NY Slip Op 08156 [45 AD3d 944] |
| November 1, 2007 |
| Appellate Division, Third Department |
| Joel M. Howard, III, Appellant-Respondent, v Mary Ann Howard,Respondent-Appellant. |
—[*1] Siegal Law Offices, L.L.C., Albany (David M. Siegal of counsel), forrespondent-appellant.
Mugglin, J. Cross appeals from a judgment of the Supreme Court (Drago, J.), entered August15, 2006 in Schenectady County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court.
In this divorce action, by stipulation, the parties identified and valued their marital assets.After trial, Supreme Court (Assini, J.) decided the issues of equitable distribution, maintenanceand counsel fees. Insofar as is relevant to this appeal, Supreme Court, in making essentially a50/50 division of assets, ordered that defendant receive the cash surrender value ($104,565.25) ofplaintiff's five whole life insurance policies, making no direction concerning the payment of thissum but apparently awarding ownership of these policies to defendant. Supreme Court did directplaintiff to maintain two term policies—with face amounts of $125,000 and$700,000—for the benefit of defendant until all maintenance and distributive award sumswere paid. Plaintiff was also ordered to pay defendant maintenance at the rate of $6,000 permonth until—absent the death of either party or defendant's remarriage—December1, 2008, retroactive to January 9, 2004, and $37,294.19 toward defendant's counsel fees of$48,787.31. Plaintiff moved for reconsideration, contending that he was to retain ownership ofthe five whole life [*2]policies (which have a face value of$961,248.60). Supreme Court (Drago, J.) denied the motion. After the judgment of divorce wasentered, plaintiff appealed this issue and defendant cross-appealed, asserting maintenance isinadequate and that plaintiff should have been required to pay 100% of her counsel fees.
First, our review of plaintiff's testimony that he is now uninsurable and wants to retainownership of the policies, coupled with the proposal in defendant's statement of proposeddisposition that plaintiff retain ownership of these policies, clearly indicates that the partiesintended that plaintiff would retain ownership. Further, as the cash surrender value of thesepolicies is listed in the parties' stipulation of marital assets, it is these values which are subject toequitable distribution (see Dougherty v Dougherty, 256 AD2d 714, 715-716 [1998];Miller v Miller, 150 AD2d 652, 653 [1989]). The abuse of discretion in awardingownership of the policies to defendant is evident if plaintiff were to suddenly die, in which eventdefendant would receive over $961,000 more than her insurable interest (see InsuranceLaw § 3205 [a] [1]; [b] [2]). While it is possible to resolve this issue by surrendering thepolicies and paying the cash received to defendant, we are of the view that the more equitablesolution under these circumstances is to increase the distributive award by $104,565.25 anddirect additional payments to defendant, thus allowing plaintiff to retain ownership of thepolicies. When this sum is added to the approximate sums owed defendant with respect to theunpaid distributive award and maintenance at the time judgment was entered, we discern noabuse of discretion in Supreme Court directing that plaintiff maintain both term policies in fullforce and effect for defendant's benefit. Nevertheless, we are of the view that defendant's interestshould be limited to the amount necessary to pay any unpaid maintenance or distributive award inthe event of plaintiff's death (see Domestic Relations Law § 236 [B] [8] [a];Hartog v Hartog, 85 NY2d 36, 50 [1995]).
On her cross appeal, defendant asserts that she should have received nondurationalmaintenance and full counsel fees. "The amount and duration of maintenance are left mainly tothe trial court's discretion, as long as the court considers the statutory factors and sets forth basesfor its conclusions" (Carman vCarman, 22 AD3d 1004, 1008 [2005] [citations omitted]; see Gubiotti v Gubiotti, 19 AD3d893, 894 [2005]). This record reveals that Supreme Court, in arriving at durationalmaintenance of $6,000 per month, terminating at the latest on December 1, 2008, addressed all ofthe statutory factors, the standard of living that the parties enjoyed during their marriage anddefendant's ability to contribute toward her own support. In view of the amount of equitabledistribution, the separate property of defendant and her work experience and education, SupremeCourt properly acted within its discretion in awarding durational maintenance (see Arnold vArnold, 309 AD2d 1043, 1044-1045 [2003]).
With respect to counsel fees, "[t]rial courts are vested with considerable flexibility anddiscretion when considering counsel fee applications" (Farrell v Cleary-Farrell, 306AD2d 597, 600 [2003]; accord Webberv Webber, 30 AD3d 723, 724 [2006]). Relevant factors for a court to consider, whendetermining an award of counsel fees, are the financial circumstances of the parties, includingdistributive awards, the extent of the legal services provided and the complexity of the case (see Redgrave v Redgrave, 22 AD3d913, 914 [2005]; Farrell v Cleary-Farrell, 306 AD2d at 600). In our view,particularly since the issues that remained for trial were not overly complex, Supreme Courtproperly considered each of the relevant factors in arriving at its decision with respect todefendant's application for counsel fees (see Soles v Soles, 41 AD3d 904, 908 [2007]; Webber vWebber, 30 AD3d at 724).
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment ismodified, on the facts, without costs, by reversing so much thereof as awarded ownership ofplaintiff's five whole life policies and their cash surrender value to defendant; plaintiff is to retainsaid whole life insurance policies as his assets, plaintiff is directed to pay defendant the sum of$104,565.25 no later than December 1, 2008, with interest at the statutory rate from August 7,2006, and plaintiff is to continue to pay the premiums for Northwestern Mutual Policy Nos. 3807and 3502 and to name defendant as the beneficiary thereof to the extent necessary to securedefendant's declining interest in the amounts of maintenance and the distributive awardremaining unpaid; and, as so modified, affirmed.