| DiBlasi v DiBlasi |
| 2008 NY Slip Op 01098 [48 AD3d 403] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Linda DiBlasi, Respondent-Appellant, v Thomas DiBlasi,Appellant-Respondent. Lawrence H. Bloom, Nonparty Respondent. |
—[*1] Spiro A. Tsimbinos, Kew Gardens, N.Y., for respondent-appellant. Lawrence H. Bloom, New York, N.Y., nonparty respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Fitzmaurice, J.), datedMarch 14, 2006, as denied his motion pursuant to CPLR 4404 (b) to set aside stated portions ofthe decision dated September 21, 2005, made after trial, (2), as limited by his brief, from so muchof a judgment of the same court dated April 19, 2006, as, upon the decision, awarded the plaintiffthe sum of $1,822 per week in child support, directed him to pay for the college tuition and roomand board for the parties' children "up to a 'SUNY cap,' " awarded the plaintiff a distributiveaward in the sum of $43,537 from his 401k, adopted a neutral appraiser's value for his business,directed him to maintain a term life insurance policy upon his own life in the amount of$2,000,000, and awarded the plaintiff an attorney's fee in the sum of $133,101.17, and theplaintiff cross-appeals (1), as limited by her brief, from so much of the same order as deniedthose branches of her motion pursuant to CPLR 4404 (b) which were to set aside stated portionsof the decision, and (2), as limited by her brief, from so much of the same judgment as failed toaward her lifetime maintenance, awarded the defendant a separate property credit in the sum of$22,500 related to the marital residence, failed to award her support arrears, and failed to award aportion of a pension allegedly held by the defendant.[*2]
Ordered that the appeal and the cross appeal from theorder are dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofawarding the defendant a separate property credit in the sum of $22,500 related to the maritalresidence, (2) by deleting the provision thereof awarding the plaintiff maintenance for a period oftwo years and substituting therefor a provision awarding the plaintiff maintenance until March14, 2013, and (3) by deleting the provision thereof awarding the plaintiff an attorney's fee in thesum of $133,101.17 and substituting therefor a provision awarding the plaintiff an attorney's feein the sum of $100,000; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, without costs or disbursement.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal and cross appeal therefrom terminated with the entry of judgment in the action(see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal and crossappeal from the order are brought up for review and have been considered on the appeal andcross appeal from the judgment (see CPLR 5501 [a] [1]).
" '[T]he amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its own unique facts' (Wortman v Wortman, 11 AD3d604, 606 [2004])" (Griggs v Griggs,44 AD3d 710, 711 [2007]; seealso Xikis v Xikis, 43 AD3d 1040 [2007]; Mazzone v Mazzone, 290 AD2d 495[2002]). "The overriding purpose of a maintenance award is to give the spouse economicindependence, and it should be awarded for a duration that would provide the recipient withenough time to become self-supporting (see Scarlett v Scarlett, 35 AD3d 710 [2006], supra;Bains v Bains, 308 AD2d 557, 559 [2003]; Chalif v Chalif, 298 AD2d 348[2002])" (Sirgant v Sirgant, 43AD3d 1034, 1035 [2007]; see alsoWalter v Walter, 38 AD3d 763 [2007]). "In determining the appropriate amount andduration of maintenance, the court is required to consider, among other factors, the standard ofliving of the parties during the marriage and the present and future earning capacity of bothparties (see Domestic Relations Law § 236 [B] [6] [A] . . .)" (Haines v Haines, 44 AD3d 901,902 [2007] [citations omitted]).
The Supreme Court providently exercised its discretion in determining the monthly amountof maintenance, but improvidently exercised its discretion in limiting the duration of themaintenance award to two years. Taking into consideration all the relevant factors, including theplaintiff's age, education, extended absence from the work force while raising the parties' fivechildren, who are still minors, and the present and future earning capacities of both parties, theduration of the award of maintenance should be extended until March 14, 2013. The extension ofthe defendant's maintenance obligation, until the two youngest boys are college age, shouldafford the plaintiff a sufficient opportunity to become self-supporting.
The Supreme Court erred in awarding the defendant a separate property credit in the sum of$22,500 related to the marital residence for the proceeds of a cooperative apartment he sold.While a party is entitled to a separate property credit for the value of property even where the netproceeds from its sale are used as partial payment on a marital residence (see Falgoust v Falgoust, 15 AD3d612, 614 [2005]), the evidence presented at trial showed that the proceeds of the sale werenot used to purchase the marital residence and the defendant was not entitled to a separateproperty credit.
The Supreme Court is vested with the discretion to make an award of an attorney's fee,having consideration for the respective financial circumstances of the parties, together with allthe [*3]circumstances of the case (see DeCabrera vCabrera-Rosete, 70 NY2d 879 [1987]; see also O'Shea v O'Shea, 93 NY2d 187[1999]). "Where the parties' respective financial positions give one a distinct advantage over theother, the court may direct the monied spouse to pay counsel fees to the attorney for thenon-monied spouse (see Silverman v Silverman, 304 AD2d 41, 48 [2003])" (Kaplan v Kaplan, 28 AD3d 523,523 [2006]; see also Sevdinoglou vSevdinoglou, 40 AD3d 959 [2007]). "An appropriate award of attorney's fees shouldtake into account the parties' ability to pay, the nature and extent of the services rendered, thecomplexity of the issues involved, and the reasonableness of the fees under all of thecircumstances" (Grumet v Grumet,37 AD3d 534, 536 [2007]).
The Supreme Court providently exercised its discretion in determining that the plaintiff wasentitled to an award of an attorney's fee. However, given all the circumstances of this case, wefind that an attorney's fee in the sum of $100,000 is appropriate (cf. Stadok v Stadok, 25 AD3d 547[2006]).
The parties' remaining contentions are without merit. Rivera, J.P., Skelos, Fisher andAngiolillo, JJ., concur.