| Grasso v Grasso |
| 2008 NY Slip Op 00454 [47 AD3d 762] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Robert D. Grasso, Appellant, v Donna Grasso,Respondent. |
—[*1] Jeffrey Levitt, Amityville, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Nassau County (Friedenberg, J.H.O.), datedMay 10, 2005, as, upon a decision of the same court dated November 15, 2002, made after anonjury trial, (1) awarded the defendant nondurational maintenance, (2) directed him to pay thedefendant retroactive maintenance and child support arrears without a credit to him for mortgageand real estate tax payments he made with respect to the marital residence, pursuant to apendente lite support order dated March 22, 2000, (3) directed him to pay, in full, the principaland interest on all marital debts bearing the defendant's name, (4) awarded him the sum of only$103,000 from the net proceeds of the sale of the marital residence as reimbursement of hiscontribution of separate property, (5) directed that, after the parties each received reimbursementof their contributions of separate property from the net proceeds of the sale of the maritalresidence, the remainder of those net proceeds be divided equally between them, (6) failed toaward him a credit in the sum of $1,700 for expenditures he incurred for the benefit of thedefendant's daughter from a prior marriage and, (7) failed to award him a credit in the sum of$2,500 for legal fees he expended on behalf of the defendant's son from a prior marriage.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof directing that the plaintiff pay retroactivemaintenance and child support arrears without a credit to him for mortgage and real estate taxpayments he made with respect to the marital residence, (2) by deleting the provision thereofdirecting him to pay, in full, the principal and interest on all marital debts bearing the defendant's[*2]name, (3) by substituting therefor a provision directing thedefendant to pay 50% of the principal and interest on all marital debts bearing the defendant'sname, (4) by adding thereto a provision awarding the plaintiff a credit in the sum of $1,700 forexpenditures he incurred on behalf of the defendant's daughter from a prior marriage, and (5) byadding thereto a provision awarding the plaintiff a credit in the sum of $2,500 for legal feesexpended on behalf of the defendant's son from a prior marriage; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Nassau County, for a hearing and determination of the amount of the maritaldebt, including accrued interest as of the date of the commencement of the action, and the entrythereafter of an amended judgment directing the defendant to pay 50% of that amount, including50% of that portion of the marital debt previously satisfied by distribution of the parties' propertyin this action.
The amount and duration of maintenance is a matter committed to the sound discretion of thetrial court, and every case must be determined on its unique facts (see Arrigo v Arrigo, 38 AD3d 807,808 [2007]; DeVries v DeVries, 35AD3d 794, 796 [2006]; Mazzone v Mazzone, 290 AD2d 495, 496 [2002];Sperling v Sperling, 165 AD2d 338, 342 [1991]). Contrary to the husband's contention,the Supreme Court's determination that the wife was entitled to maintenance on a nondurationalbasis was not an improvident exercise of its discretion. While the husband correctly contends thatthe court improperly admitted into evidence and relied upon a determination of the SocialSecurity Administration as to the wife's disability, there was other sufficient admissible evidencewhich supported the finding that the wife was totally disabled (see Peri v Peri, 2 AD3d 425, 426[2003]; Mazzone v Mazzone, 290 AD2d 495, 496 [2002]; Loeb v Loeb, 186AD2d 174, 175 [1992]; cf. Palestra v Palestra, 300 AD2d 288, 289 [2002]).
In reviewing a court's determination as to the equitable distribution of marital assets, the trialcourt's assessment of the credibility of witnesses is afforded great weight on appeal (seeAntes v Antes, 304 AD2d 597, 597-598 [2003]). Applying this principle, we decline todisturb the Supreme Court's determination as to the amount of the husband's separate propertycontribution toward the purchase of the marital residence. Moreover, the Supreme Court did notimprovidently exercise its discretion in dividing the remaining proceeds equally between theparties, after deduction of their contributions of separate property (see McCully vMcCully, 306 AD2d 329, 330 [2003]; Sebag v Sebag, 294 AD2d 560 [2002];Zuidema v Zuidema, 270 AD2d 412 [2000]).
However, the husband correctly contends that, in directing him to pay maintenance and childsupport arrears, the Supreme Court erred in failing to credit him for the mortgage and real estatetax payments on the marital residence which he made pursuant to a pendente lite support orderdated March 22, 2000 (see Markopoulos v Markopoulos, 274 AD2d 457, 459 [2000];Crane v Crane, 264 AD2d 749, 752 [1999]; Mellen v Mellen, 260 AD2d 609,610 [1999]). The amounts for which the husband should have been credited for his payments ofthe mortgage and real estate taxes, after adding a credit for one half of the amount the courtawarded him from the proceeds of sale of the marital residence as a sanction for the wife's failureto cooperate in expediting its sale, were more than sufficient to offset the maintenance and childsupport arrears calculated by the Supreme Court. Hence, the court should not have awarded thewife maintenance and child support arrears.
The husband also correctly contends that the Supreme Court improvidently exercised itsdiscretion by, in effect, holding him responsible for 100% of the credit card obligations thatconstitute the parties' marital debt as well as all the marital debt that was solely in the wife'sname. Under the circumstances of this case, the parties' marital debt would have been moreappropriately [*3]distributed by allocating it equally betweenthem, and offsetting it against the net proceeds of the sale of the marital residence after deductionof their contributions of separate property (see Bogdan v Bogdan, 260 AD2d 521, 522[1999]; Gelb v Brown, 163 AD2d 189, 194 [1990]; see also Levine v Levine, 24 AD3d 625, 626 [2005]).
The Supreme Court erred in failing to award the husband a credit for the sum of $1,700 inexpenses he incurred on behalf of the wife's daughter from a prior marriage and the sum of$2,500 in fees expended from marital funds on behalf of the wife's son from a prior marriage.
However, since, at this juncture, the marital residence may already have been sold and theproceeds distributed, we remit the matter to the Supreme Court, Nassau County, for a hearingand determination of the amount of the parties' marital debt, including accrued interest as of thecommencement of the action, and the entry thereafter of an amended judgment directing the wifeto pay 50% of the entire marital debt, including 50% of that portion of the marital debt previouslysatisfied by distribution of the parties' properties in this action.
We note that at the trial of this matter, the Supreme Court erred in precluding the husbandfrom offering evidence in support of his contention that a loan taken out against his 401(k)account was used to satisfy the marital debt obligation. Accordingly, on remittitur, the SupremeCourt shall permit the husband to offer proof as to this at the hearing we are directing, and tocredit him with the wife's portion of any marital debt which he proves was paid from theproceeds of this loan.
The parties' remaining contentions either are unpreserved for appellate review or withoutmerit. Crane, J.P., Florio, Angiolillo and Carni, JJ., concur.