| Meccariello v Meccariello |
| 2007 NY Slip Op 09743 [46 AD3d 640] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Nunzio Meccariello, Respondent, v Janet Meccariello,Appellant. |
—[*1] DaSilva, Hillowitz & McEvily, LLP, Garden City, N.Y. (Charles J. McEvily and PaulaSchwartz Frome of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Kings County (Sunshine, J.), dated April 11,2006, as awarded the plaintiff a divorce on the grounds of cruel and inhuman treatment andconstructive abandonment, awarded her maintenance in the sum of only $250 per week until theage of 65, awarded her only 25% of the 30% portion of the business that the plaintiff acquired in1997, and permanently enjoined her from mailing any nonfinancial correspondence to theplaintiff.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provision awarding the defendant 25% of the 30% portion of the business that theplaintiff acquired in 1997 and substituting therefor a provision awarding the defendant 40% ofthe 30% portion; as so modified, the judgment is affirmed insofar as appealed from, withoutcosts or disbursements.
Contrary to the defendant's contention, the plaintiff demonstrated, through his own testimonyand the testimony of another witness, that the defendant's behavior so adversely affected hisphysical and mental well being that it became improper for him to cohabit with her (see Rose v Rose, 18 AD3d 852,853 [2005]; cf. Cauthers v Cauthers,32 AD3d 880 [2006]). Accordingly, the Supreme Court properly granted the plaintiff adivorce on the ground of cruel and inhuman treatment. The plaintiff also established that thedefendant constructively abandoned him by refusing to engage in sexual [*2]relations for more than a year (see Domestic Relations Law§ 170). He proffered proof that such a refusal was unjustified and willful, and continueddespite his repeated requests (see Ostriker v Ostriker, 203 AD2d 343 [1994]; cf.Caprise v Caprise, 143 AD2d 968 [1988]).
The defendant contends that the Supreme Court improperly awarded her maintenance of alimited duration, as opposed to lifetime maintenance, and that the amount she was awarded wasinsufficient. However, the amount and duration of maintenance is a matter committed to thesound discretion of the trial court, and every case must be determined on its unique facts (seeMazzone v Mazzone, 290 AD2d 495 [2002]; Liadis v Liadis, 207 AD2d 331 [1994]).The court may order maintenance in such amount as justice requires, considering, among otherfactors, the standard of living of the parties during the marriage, the distribution of maritalproperty, the duration of the marriage, the health of the parties, the present and future earningcapacity of both parties, the ability of the party seeking maintenance to become self-supporting,and the reduced or lost lifetime earning capacity of the party seeking maintenance (see Kret vKret, 222 AD2d 412 [1995]). Taking these factors into consideration, the Supreme Courtprovidently exercised its discretion in granting the defendant maintenance in the sum of $250 aweek until she reached the age of 65.
The Supreme Court improvidently exercised its discretion in awarding the defendant only25% of the 30% portion of the plaintiff's business that the plaintiff acquired in 1997 (seeDomestic Relations Law § 236 [B] [5] [d] [6], [13]). Under the circumstances of this case,the defendant should have been awarded 40% of the 30% portion.
The Supreme Court correctly permanently enjoined the defendant from mailing anynonfinancial correspondence to the plaintiff, since the plaintiff demonstrated that he would sufferirreparable harm absent the injunction (cf. Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d 595, 596[2005]; Kane v Walsh, 295 NY 198, 205-206 [1946]).
The defendant's remaining contentions are without merit. Goldstein, J.P., Fisher, Carni andMcCarthy, JJ., concur.