| Costa v Costa |
| 2007 NY Slip Op 10502 [46 AD3d 495] |
| December 27, 2007 |
| Appellate Division, First Department |
| Renee Costa, Respondent, v Vincent Costa, Jr., Appellant.Saltzman Chetkof & Rosenberg, LLP, Nonparty Respondent. |
—[*1] Saltzman Chetkof & Rosenberg, LLP, Garden City (Lee Rosenberg of counsel), for SaltzmanChetkof & Rosenberg, LLP, respondent.
Judgment, Supreme Court, New York County (Laura E. Drager, J.), entered December 27,2006, after a nonjury trial, inter alia, distributing the parties' marital assets and awardingmaintenance, support and counsel fees, and bringing up for review an order, same court andJustice, entered August 15, 2006, unanimously modified, on the law, the facts and in the exerciseof discretion, to value the marital residence and furnishings at $1,000,000 and the condominiumat $550,000, to limit the husband's obligation to continue to pay the mortgage, real estate taxesand any other carrying charges on the marital residence to four years, to redistribute theremaining marital assets, to provide that maintenance payments to the wife shall be limited toseven years, as set forth in the decision herein, and be taxable to her, and otherwise affirmed,without costs, and the matter remanded for further proceedings consistent herewith. Appeal fromthe aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from thejudgment.
The award to the wife of title to the marital residence and its furnishings was appropriategiven her need for a home as the custodial parent of the parties' two minor children, theavailability to the husband of other residences and his use of marital assets to purchase aMassapequa Park condominium. However, the husband should have been awarded a 100%interest in the condominium. Also, there was no reason for the trial court to depart from thestipulated value for the marital residence or from the husband's claimed value for thecondominium.
In addition to the foregoing redistributions, we also direct redistributions of the remainingassets, with the exceptions of the UTMA accounts to be continued to be held and used for eachchild's college education. The wife is entitled to a total of $515,381.57 from the remainingnonresidence assets, which include the individual retirement accounts of both spouses set forth inthe order. This 55-45 distribution is equitable under the circumstances (see Naimollah v DeUgarte, [*2]18 AD3d 268, 269 [2005]), taking intoconsideration the wife's contributions to the success of the husband's career and her limitedearnings prospects. Upon settlement of a judgment, within 30 days after service of a copy of thisorder distributing the remaining assets in accordance herewith, to the extent that the amountpayable to the wife may include a share of the husband's Fidelity Profit Sharing account, itsdistribution should be subject to a qualified domestic relations order (see Matter of Carr vJonbil, Inc., 245 AD2d 369 [1997]).
The maintenance award should be reduced in duration to seven years, granting the wife$5,000 per month for the first five years and $4,000 per month for the next two, taxable to her(see Grumet v Grumet, 37 AD3d534, 536 [2007]; cf. Lolli-Ghetti v Lolli-Ghetti, 165 AD2d 426, 434 [1991], lvdenied 78 NY2d 864 [1991]). This is appropriate for a 16-year marriage in which the wifehad the primary homemaking and child-raising responsibilities and had been absent from theworkforce since 1990. It properly reflects the parties' respective educational backgrounds andfinancial positions (see Pickard vPickard, 33 AD3d 202, 204 [2006], appeal dismissed 7 NY3d 897 [2006];Chervin v Chervin, 264 AD2d 680 [1999]), and is appropriately structured to encourage thewife to become self-supporting. It also takes into consideration the parties' marital standard ofliving (see Summer v Summer, 85 NY2d 1014 [1995]; Ventimiglia vVentimiglia, 307 AD2d 993, 995 [2003]).
The child support award was appropriately based on the parties' lifestyle, the children's needsand the parties' income in excess of $80,000 (see Matter of Culhane v Holt, 28 AD3d 251, 252 [2006];Anonymous v Anonymous, 286 AD2d 585 [2001], lv denied 97 NY2d 611[2002]). The court considered the relevant circumstances and providently exercised its discretionin awarding college expenses (seeMatter of Holliday v Holliday, 35 AD3d 468 [2006]). This award was not premature,since one of the children was 15 years old at the time of trial and approaching college age, and itwould be unfair to the wife and would contravene principles of judicial economy to require her toseek an upward modification in only two years (cf. Friedman v Friedman, 216 AD2d 204[1995]; Gilkes v Gilkes, 150 AD2d 200 [1989]).
The award of counsel fees was a proper exercise of discretion based upon consideration ofthe relevant factors (see O'Shea v O'Shea, 93 NY2d 187, 190 [1999]; Wechsler v Wechsler, 19 AD3d157 [2005]). Contrary to the husband's contention, the wife's distributive award did not placethe parties in financial parity and did not preclude her counsel fee award (see Weinstein v Weinstein, 18 AD3d246 [2005]). We note that the husband failed to object to any specific charge, and, in anyevent, upon our own review of the fee award we find that it was not excessive (see Beal vBeal, 196 AD2d 471, 473 [1993]).
At trial the husband urged the court to recognize the instability of his future professionalearning capacity, while the wife urged the court to investigate her allegations regarding thehusband's failure to be forthcoming about his finances. Our findings at this juncture do notpreclude further review of these claims.[*3]
We have considered the husband's remaining contentionsand find them unavailing. Concur—Mazzarelli, J.P., Saxe, Sullivan, McGuire andKavanagh, JJ.