| Luongo v Luongo |
| 2008 NY Slip Op 03424 [50 AD3d 858] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Marta Luongo, Respondent, v Joseph L. Luongo,Appellant, et al., Defendant. |
—[*1] Bloom & Bloom, P.C., New Windsor, N.Y. (Peter E. Bloom of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Orange County (Owen, J.), dated July26, 2006, which, after a nonjury trial, inter alia, (1) awarded the plaintiff a divorce on the groundof cruel and inhuman treatment, (2) awarded the plaintiff child support in the sum of $1,057.15per month, (3) awarded the plaintiff a share of his pension and variable supplement fund benefits,and (4) awarded the plaintiff an attorney's fee in the sum of $6,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The determination of what constitutes cruel and inhuman treatment during a marriage isdependent on the circumstances of the case, and the trial court's determination of this issue willnot lightly be overturned on appeal (seeBluth v Bluth, 45 AD3d 796 [2007]; Curatola v Curatola, 43 AD3d 974 [2007]; Levy v Levy,289 AD2d 379 [2001]; French v French, 262 AD2d 280 [1999]). Here, the plaintiffsatisfied her burden of demonstrating that the defendant engaged in conduct, including twophysical assaults, which was harmful to her physical and mental well-being and made it unsafe orimproper for her to cohabit with him (see Domestic Relations Law § 170 [1]; Bluth v Bluth, 45 AD3d 796[2007]; Acito v Acito, 21 AD3d1044 [2005]; Reed v Reed, 13AD3d 602 [2004]). The defendant's denial that he engaged in such conduct presented acredibility question which the court was entitled to resolve against him (see Fuegel vFuegel, 271 AD2d 404 [2000]; French v French, 262 AD2d 280 [1999]).Accordingly, the court properly awarded the plaintiff a divorce on the ground of cruel andinhuman treatment.[*2]
Furthermore, the court properly calculated the defendant'smonthly child support obligation without crediting him for Social Security benefits which thechildren receive due to his disability. "[A]lthough a dependent child's Social Security benefits arederived from the disabled parent's past employment, they are designed to supplement existingresources and are not intended to displace the obligation of the parent to support his or herchildren" (Matter of Graby v Graby, 87 NY2d 605, 611 [1996]; see Matter of Weymouth v Mullin, 42AD3d 681 [2007]; Matter ofWrighton v Wrighton, 23 AD3d 669 [2005]; Matter of Pinto v Putnam CountySupport Collection Unit, 295 AD2d 350 [2002]).
The court did not err in directing distribution of the defendant's pension and variablesupplement fund benefits in accordance with the equitable distribution formula set forth inMajauskas v Majauskas (61 NY2d 481 [1984]). Pensions represent a form of deferredcompensation paid after retirement in lieu of greater compensation during the period ofemployment (see Olivo v Olivo, 82 NY2d 202, 207 [1993]; Majauskas vMajauskas, 61 NY2d at 491-492), and the nonemployee spouse is entitled to share in thepension of the employee spouse as well as supplements to existing pension benefits, such asvariable supplement fund benefits (see DeLuca v DeLuca, 97 NY2d 139, 145 [2001];Olivo v Olivo, 82 NY2d at 209-210; Pagliaro v Pagliaro, 31 AD3d 728 [2006]).
The award of counsel fees in a matrimonial action is a matter within the discretion of the trialcourt (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; Sevdinoglou v Sevdinoglou, 40 AD3d959 [2007]). In light of the defendant's greater financial resources, the court providentlyexercised its discretion in awarding the plaintiff an attorney's fee in the sum of $6,000 (see Sevdinoglou v Sevdinoglou, 40AD3d 959 [2007]; Levy vLevy, 4 AD3d 398 [2004]; Krutyansky v Krutyansky, 289 AD2d 299 [2001]).
The defendant's remaining contentions either are without merit or need not be reached inlight of our determination. Mastro, J.P., Santucci, Eng and Belen, JJ., concur.