| Kaplan v Kaplan |
| 2008 NY Slip Op 04321 [51 AD3d 635] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Ellen Kaplan, Respondent-Appellant, v Jerrold Kaplan,Appellant-Respondent |
—[*1] Raoul Felder and Partners, P.C., New York, N.Y. (Bettina D. Hindin of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the husband appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Nassau County (Stack, J.), dated August 1,2006, as, after a nonjury trial, (1) directed him to pay maintenance in the sum of $ 6,000 permonth for a continuous period of 60 months, and then, commencing with the 61st month, thesum of $3,000 per month continuing for life, (2) directed him to pay the sum of $29,000 inarrears for temporary maintenance, (3) directed distribution of the bank accounts of his dentalpractice in addition to distribution of the value of his dental license and practice, (4) directed himto obtain life insurance as security for the distributive and maintenance awards contained in thejudgment, and (5) directed him to pay a total of $100,000 in attorney's fees on behalf of the wife,and the wife cross-appeals, as limited by her brief, from so much of the same judgment asawarded her only 30% of the husband's dental license and practice.
Ordered that the judgment is modified, on the law and the facts and in the exercise ofdiscretion, by (1) deleting the provision thereof directing the husband to pay maintenance in thesum of $3,000 per month commencing with the 61st month and continuing for life, (2) deletingthe provision thereof awarding the wife 30% of the husband's bank accounts related to thehusband's dental practice, and (3) adding a provision thereto making the husband's obligation toobtain life insurance as security for the distributive and maintenance awards contained in thejudgment coterminous with the maintenance obligation; as so modified, the judgment is affirmedinsofar as appealed and cross-appealed from, without costs or disbursements.[*2]
The Supreme Court's award of lifetime maintenance tothe wife was an improvident exercise of discretion. In view of the wife's work experience, thefact that she was gainfully employed and earning approximately $80,000 per year, the sizabledistributive award she received, and her equal share of the husband's retirement benefits, theaward of permanent maintenance was inappropriate (see Howard v Howard, 45 AD3d 944 [2007]; Genatowski v Genatowski, 43 AD3d1105 [2007]; Cuozzo v Cuozzo,2 AD3d 665 [2003]). However, the award of $6,000 per month in maintenance for aperiod of five years is appropriate under the circumstances of this case.
The Supreme Court's determination to award the wife the sum of $29,000 in temporarymaintenance arrears should not be disturbed (see Miller v Miller, 24 AD3d 521, 522 [2005]; Davey v Davey,293 AD2d 443, 444 [2002]; Kyriazis v Kyriazis, 260 AD2d 447, 448 [1999]; seealso Verdrager v Verdrager, 230 AD2d 786, 789 [1996]; Ferraro v Ferraro, 257AD2d 598, 599-600 [1999]).
The court providently exercised its discretion in awarding the wife 30% of the husband'sdental practice and license. " 'Although in a marriage of long duration, where both parties havemade significant contributions to the marriage, a division of marital assets should be made asequal as possible . . . there is no requirement that the distribution of each item ofmarital property be made on an equal basis' " (Griggs v Griggs, 44 AD3d 710, 713 [2007], quoting Chalif vChalif, 298 AD2d 348, 349 [2002]). Here, the award of 30% takes into account the limits ofthe defendant's involvement with the practice and the attainment of the dental license, while notignoring the direct and indirect contributions that she made (see Schwartz v Schwartz, 47 AD3d 795 [2008]; Griggs v Griggs, 44 AD3d 710[2007]; Granade-Bastuck v Bastuck, 249 AD2d 444 [1998]; Newton v Newton,246 AD2d 765, 766 [1998]).
The Supreme Court erred in directing the separate distribution of both the husband's dentalpractice and the bank accounts of the dental practice. The value of the dental practice, asdetermined by a neutral business evaluator, already included the value of these accounts (seegenerally Domestic Relations Law § 236 [B] [5]; Genatowski v Genatowski, 43 AD3d 1105 [2007]).
The determination of what constitutes reasonable counsel fees is within the court's discretion(see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; Stadok v Stadok, 25 AD3d 547[2006]; Herzog v Herzog, 18 AD3d707, 709 [2005]). The issue of attorney's fees is controlled by the circumstances of eachparticular case and the court must consider the relative financial circumstances of the parties, therelative merit of their positions, and the tactics of a party in unnecessarily prolonging thelitigation (see Domestic Relations Law § 237 [a]; O'Shea v O'Shea, 93NY2d 187, 190 [1999]; Timpone vTimpone, 28 AD3d 646 [2006]; Levy v Levy, 4 AD3d 398, 399 [2004]; Gallousis v Gallousis,303 AD2d 363, 364 [2003]). Here, the Supreme Court properly weighed the circumstancesof the case and its determination should not be disturbed.
The Supreme Court properly directed the husband to obtain life insurance naming the wife asbeneficiary (see Domestic Relations Law § 236 [B] [8] [a]). However, inaccordance with this Court's determination that the award of maintenance should be modified toeliminate the award of lifetime maintenance, the Supreme Court's directive must also bemodified so as to provide that the requirement to provide life insurance as security for themaintenance award is coterminous with such award. Mastro, J.P., Ritter, Carni and Eng, JJ.,concur.