| Zwickel v Szajer |
| 2007 NY Slip Op 09471 [45 AD3d 1222] |
| November 29, 2007 |
| Appellate Division, Third Department |
| Claire Zwickel, Appellant, v Bogdan Szajer,Respondent. |
—[*1] Cohen & Cohen, L.L.P., Utica (Daniel S. Cohen of counsel), for respondent.
Crew III, J.P. Appeal from an order of the Supreme Court (Lalor, J.), entered May 9, 2006 inGreene County, which, among other things, denied plaintiff's application for spousalmaintenance and counsel fees.
Plaintiff and defendant were married in November 1989. At the time of their marriage,plaintiff was 28 years old, had earned a Bachelor's degree in aviation management and flighttechnology and was employed as a pilot; defendant was 43 years old and also was employed inthe aviation field as a first officer (copilot). The parties' first child was born in 1991. Plaintiff wasfurloughed from her employment from 1993 to 1994, and the parties apparently lived separateand apart in 1995, 1996 and 1997. Following a reconciliation, their second child was born in1998, and the parties resided together until they separated again in 2001. In the interim, plaintiffwas out on disability from 1997 until some point in late 2001 or early 2002, at which time shereturned to work as a copilot for American Airlines.
Plaintiff commenced this action for divorce in September 2003, prior to which plaintiffsecured an order from Family Court (Stegmayer, Support Mag.) directing defendant to pay childsupport in the amount of $936 semimonthly.[FN*]The parties thereafter agreed that the complaint would be [*2]amended to allege abandonment, that defendant would waive hisright to appear and that plaintiff would have sole custody of the minor children. The remainingissues—namely, maintenance, counsel fees and plaintiff's request for reimbursement ofcertain Bat Mitzvah expenses—were tried before Supreme Court in March 2006. At theconclusion thereof, Supreme Court denied plaintiff's requests in this regard, and this appeal byplaintiff ensued.
We affirm. The case law makes clear that the purpose of maintenance is to provide financialsupport for the recipient spouse while he or she gains the skills and employment necessary tobecome self-sufficient and, further, that the amount and duration of any such maintenance is amatter committed to the sound discretion of the trial court (see Holterman v Holterman,307 AD2d 442 [2003], affd 3 NY3d 1 [2004]). To that end, a trial court must give dueconsideration to the statutory factors set forth in Domestic Relations Law § 236 (B) (6) (a).
Here, even a cursory review of Supreme Court's decision reveals that it indeed gaveappropriate consideration to each of the enumerated factors including, but not limited to, theparties' respective ages and future employment prospects, the length of the marriage and thepredivorce standard of living. Specifically, Supreme Court noted that at the time the underlyingaction was commenced, plaintiff was 42 years old and, thus, was eligible to continue flying as apilot for another 18 years. Defendant, on the other hand, was then 57 years old and, hence, onlythree years away from being ineligible to fly. Indeed, at the time of trial in March 2006,defendant testified that he had taken a job as a flight training manager in order to avoidmandatory retirement once he turned 60 years old in June 2006. Supreme Court further noted thatalthough the parties married in 1989, their extended periods of separation resulted in themactually residing together as spouses for only roughly 10 years, thereby negating plaintiff's claimthat this was a marriage of long duration. As to the issue of predivorce standard of living, thecourt noted that due to plaintiff's extended absences from work, during which time defendant'sincome was the parties' sole means of support, their predivorce standard of living was, for asubstantial portion of their marriage, based upon only one income. In short, Supreme Courtconcluded that given the parties' respective educations, training and future employmentprospects, as well as the history of their marriage and the remaining statutory factors, an award ofmaintenance to plaintiff was not warranted. Upon our review of the record as a whole, we discernno basis upon which to disturb that determination.
Plaintiff's remaining contentions do not warrant extended discussion. As to theapproximately $18,000 that plaintiff spent on the parties' daughter's Bat Mitzvah, we need noteonly that such sums were expended after the commencement of the underlying matrimonialaction and, hence, do not qualify as a marital debt (see Domestic Relations Law §236 [B] [1] [c]; Prince v Prince, 247 AD2d 457 [1998]). In any event, given thatdefendant was neither consulted on nor invited to the celebration, and in the absence of anytestimony as to the reasonableness of the sums expended, we cannot say that Supreme Courterred in denying plaintiff's request for [*3]reimbursement. Wereach a similar conclusion as to the issue of counsel fees, as the record reflects that plaintiff ispossessed of sufficient resources to bear her own counsel fees. Accordingly, Supreme Court'sorder is affirmed.
Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Although the actual orderdirected defendant to pay $630 biweekly, defendant testified and plaintiff acknowledged that hewas paying support in the amount of $936. The record reflects further confusion as to whetherthis sum was biweekly or semimonthly but, for purposes of this decision, we will accept SupremeCourt's finding that defendant's annual support obligation was approximately $22,500.