| Groesbeck v Groesbeck |
| 2008 NY Slip Op 04469 [51 AD3d 722] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Courtney Groesbeck, Respondent-Appellant, v Thomas W.Groesbeck, Appellant-Respondent. |
—[*1] Richard J. Feinberg, New City, N.Y., for respondent-appellant.
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, Rockland County (Berliner, J.), datedMay 30, 2007, which, inter alia, after a nonjury trial, distributed the parties' marital property byawarding the plaintiff title to the marital premises, and directed him to pay the plaintiffmaintenance in the sum of $1,000 per month for a period commencing on March 1, 2007, andconcluding on December 1, 2008, and the plaintiff cross-appeals, as limited by her brief, fromstated portions of the same judgment which, inter alia, awarded her child support in the sum ofonly $312 per week, directed the defendant to pay maintenance in the sum of only $1,000 permonth until December 1, 2008, and failed to award maintenance and child support retroactive tothe date the application for such support was first made.
Ordered that the judgment is modified, on the law, (1) by deleting from the sixth decretalparagraph thereof the words "commencing on March 1, 2007," and substituting therefor thewords "commencing on October 13, 2004," and (2) adding to the third decretal paragraph thereofa provision that the defendant's child support obligation shall commence on October 13, 2004; asso modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costsor disbursements, and the matter is remitted to the Supreme Court, Rockland County, for furtherproceedings consistent herewith.
The Supreme Court providently exercised its discretion in distributing marital property by[*2]awarding the plaintiff former wife title to the maritalresidence where she was residing at the time of trial with the parties' young children, whiledirecting that the defendant former husband retain his interest in his home improvementcontracting business. Although the net equity in the marital residence exceeded the appraisedvalue of the defendant's interest in his business, equitable distribution does not necessarily meanequal distribution (see Griggs vGriggs, 44 AD3d 710 [2007]; Falgoust v Falgoust, 15 AD3d 612 [2005]; Rizzuto vRizzuto, 250 AD2d 829 [1998]), and the Supreme Court properly considered the relevantstatutory factors in fashioning the distributive award in this case (see Domestic RelationsLaw § 236 [B] [5]; Cavaretta v Cavaretta, 127 AD2d 1002 [1987]).
Furthermore, there is no merit to the defendant's contention that the court's maintenanceaward was improper because it "double counted" the value of his business in violation of the rulearticulated in Grunfeld v Grunfeld (94 NY2d 696 [2000]). That rule is inapplicable herebecause the husband's business is a tangible, income-producing asset (see Keane v Keane, 8 NY3d 115[2006]; Griggs v Griggs, 44 AD3d710 [2007]).
We also reject the plaintiff's contention that the amount and duration of the maintenanceaward was inadequate. "[T]he amount and duration of maintenance is a matter committed to thesound discretion of the trial court, and every case must be determined on its own unique facts"(Wortman v Wortman, 11 AD3d604, 606 [2004]; see DiBlasi vDiBlasi, 48 AD3d 403 [2008]; Griggs v Griggs, 44 AD3d 710 [2007]; Xikis v Xikis, 43 AD3d 1040[2007]). "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" (Sirgant v Sirgant, 43 AD3d 1034, 1035 [2007]; see DiBlasi v DiBlasi, 48 AD3d403 [2008]; Scarlett v Scarlett,35 AD3d 710 [2006]). Here, the plaintiff, who was studying for a position in the medicalfield at the time of trial, testified that she anticipated completing her educational program and arequired externship by the summer of 2007. The court's award of maintenance in the sum of$1,000 per month for 1½ years after the plaintiff completed her studies is adequate inamount and duration to allow her to become self-supporting.
Contrary to the plaintiff's contention, the court properly calculated the child supportobligation based upon a finding that the defendant earned $83,253 in 2004. The court's incomedetermination was supported by the valuation report of a neutral accountant who examined the2004 income tax return filed on behalf of the defendant's business, and the plaintiff failed to offersufficient evidence to establish that the defendant's income was greater than reported.
However, by statute, a party's child support and maintenance obligations are retroactive tothe date an application for such support was made (see Domestic Relations Law §236 [B] [6] [a]; [7] [a]). Thus, the court should have awarded child support and maintenanceretroactive to October 13, 2004, when the summons with notice requesting such relief was filed(see Grassi v Grassi, 35 AD3d357 [2006]; Schiffer v Schiffer, 21 AD3d 889 [2005]; Koeth v Koeth, 309AD2d 786 [2003]). Accordingly, upon remittitur, the Supreme Court, Rockland County, mustcalculate the amount of retroactive child support and maintenance due, less any amount ofmaintenance and child support already paid (see Domestic Relations Law § 236[B] [6] [a]; Miklos v Miklos, 39AD3d 826 [2007]; Grassi vGrassi, 35 AD3d 357 [2006]; Schiffer v Schiffer, 21 AD3d 889; Koeth v Koeth, 309AD2d 786 [2003]).
The parties' remaining contentions are without merit. Lifson, J.P., Florio, Eng and Chambers,JJ., concur.