| Ciampa v Ciampa |
| 2008 NY Slip Op 00442 [47 AD3d 745] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Donna Ann Ciampa, Appellant-Respondent, v Douglas A.Ciampa, Respondent-Appellant. |
—[*1] Del Vecchio & Recine, LLP, Garden City, N.Y. (Phyllis Recine of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Suffolk County (Kent, J.), entered April 11,2006, as (1) awarded her only 35% of the marital portion of the defendant's business interests, (2)awarded her durational maintenance in the sum of only $7,000 per month for a period of fiveyears, (3) awarded her child support in the amount of only $1,490.38 per week, (4) failed toaward prejudgment interest, and (5) awarded postjudgment interest at the rate of only 6%, andthe defendant cross-appeals from so much of the same judgment as (1) awarded the plaintiff 35%of the marital portion of his business interests, (2) awarded him a credit in the sum of only$75,000 for the marital residence, (3) awarded the plaintiff counsel and expert fees while failingto award him the same, (4) failed to award him a credit for marital property retained by theplaintiff, and (5) directed that his life insurance and child support obligations continue forchildren until they attain the age of 22 or graduate from college, whichever occurs first.
Ordered that the judgment is modified, on the law, by deleting the provision thereof directingthe defendant to provide life insurance and child support until each child attains the age of 22 orgraduates from college, whichever occurs first, and substituting therefor a provision directing thedefendant to provide life insurance and child support until each child attains the age of 21, and byadding to the penultimate decretal paragraph thereof, after the first sentence, the sentence "Withrespect to the $100,000 advance, the defendant shall be credited with this amount as againstcounsel and expert fees, unless he has already reduced his equitable distribution obligation byusing this[*2]$100,000 credit."; as so modified, the judgment isaffirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In this long-term marriage where the parties have four children, the court providentlyexercised its discretion in awarding the plaintiff 35% of the defendant's business interests. Thisaward took into account the plaintiff's limited involvement in the defendant's business, while notignoring the direct and indirect contributions she made as the primary caretaker of the parties'children, as homemaker, and as social companion to the defendant, while foregoing her career asan attorney (see Domestic Relations Law § 236 [B] [5] [d] [6]; Price v Price,69 NY2d 8, 11, 14 [1986]; Griggs vGriggs, 44 AD3d 710 [2007]).
Further, in awarding the plaintiff maintenance in the sum of $7,000 per month for a period offive years, the court did not improvidently exercise its discretion, having considered the parties'standard of living during the marriage, their property and income (see DomesticRelations Law § 236 [B] [6] [a]; Summer v Summer, 85 NY2d 1014, 1016 [1995];Wortman v Wortman, 11 AD3d604, 606 [2004]; Braun v Braun,11 AD3d 423 [2004]). While the court found that the plaintiff, who has not practicedlaw since the birth of their oldest child in 1987, will need three to five years after returning to theworkplace to earn any substantial income as an attorney, the court also found that in the interimshe will receive a substantial distributive award totaling approximately $4.5 million as a result ofthis matrimonial action. The amount of maintenance awarded by the court will thus ensure thather reasonable needs are met, while also providing her with an incentive to become financiallyindependent (see Griggs v Griggs,44 AD3d 710 [2007]; Hathaway vHathaway, 16 AD3d 458, 460 [2005]; Granade-Bastuck v Bastuck, 249 AD2d444, 446 [1998]).
Contrary to the plaintiff's additional argument, the court providently exercised its discretionin limiting the combined parental income to $250,000 (see Matter of Brim v Combs, 25 AD3d 691, 693 [2006], lvdenied 6 NY3d 713 [2006]; Lee vLee, 18 AD3d 508, 510 [2005]; Anonymous v Anonymous, 286 AD2d 585, 586[2001]; Kosovsky v Zahl, 272 AD2d 59, 60 [2000]), and fixing child support for her asthe children's custodian at the sum of $1,490.38 per week. The court properly found that it wouldbe unjust and inappropriate to apply the statutory formula to income over $80,000, given that theplaintiff was receiving maintenance and a substantial distributive award, and taking into accountthe children's comfortable, but modest, prior lifestyle (see Domestic Relations Law§ 240 [1-b]; Matter of Cassano v Cassano, 85 NY2d 649, 654-655 [1995]).
The defendant correctly contends on his cross appeal that the court erred in directing him topay child support and maintain life insurance for the benefit of children over the age of 21. Aparent is not liable for the support of a child who has reached the age of 21, unless there is anexpress agreement to pay such support (see Family Ct Act § 413). Because there isno such agreement in this case, the court erred in directing the defendant to pay child supportuntil each child attained the age of 22 or graduated from college, whichever came first (see Matter of Winokur v Winokur, 31AD3d 653, 654 [2006]; Poli v Poli, 286 AD2d 720, 722 [2001]).
However, contrary to the defendant's further argument, the court did not err in awarding theplaintiff counsel fees up to the amount he paid for his own counsel of $201,437.80, as well asexpert fees of $50,000, while denying an award of counsel fees to the defendant (seeUnger-Matusik v Matusik, 276 AD2d 936, 940 [2000]; cf Zema v Zema, 17 AD3d 360 [2005]). This matrimonial actionrequired the expenditure of significant counsel fees to deal with the myriad of legal issues [*3]presented, as well as substantial expert fees in order to evaluate theparties' multimillion-dollar business assets and residential and commercial real estate.Nonetheless, the defendant's expenditure of $201,437.80 for his counsel fees pales in comparisonto the plaintiff's expenditure of more than $484,142 for her counsel and experts, the plaintiffhaving utilized at least five law firms during the course of this matrimonial proceeding.
Given, inter alia, the equities and circumstances of this case, the relative merits of the parties'positions, their respective financial circumstances, and the delay attributable to the plaintiff, theSupreme Court properly exercised its discretion in holding the defendant responsible for theplaintiff's counsel fees in the same amount he paid his own counsel, plus $50,000 of her expertfees (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; Timpone v Timpone, 28 AD3d646 [2006]), the substantial remaining balance of the plaintiff's fees being chargeable to her.We note that since the defendant has already paid the sum of $94,392.32 for the plaintiff's legaland expert fees and advanced $100,000 toward her equitable distribution, the Supreme Courtproperly indicated that the defendant should receive a credit for those payments. With respect tothe $100,000 advance, the defendant shall be credited with this amount as against counsel andexpert fees, unless he has already reduced his equitable distribution obligation by using this$100,000 credit.
The parties' remaining contentions are without merit. Crane, J.P., Miller, Dillon and Balkin,JJ., concur.