| Charles v Charles |
| 2008 NY Slip Op 06137 [53 AD3d 468] |
| July 1, 2008 |
| Appellate Division, Second Department |
| Jodi Charles, Appellant-Respondent, v Scott Charles,Respondent-Appellant. |
—[*1] Cohen Hennessey Bienstock & Rabin, P.C., New York, N.Y., forrespondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of ajudgment of the Supreme Court, Nassau County (Stack, J.), entered June 22, 2006, which, upon adecision of the same court dated February 2, 2006, made after a nonjury trial, inter alia, directedthe immediate sale of the marital residence, and the defendant cross-appeals from stated portionsof the same judgment, which, among other things, awarded the plaintiff lifetime maintenance.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by adding to the 6th decretal paragraph thereof provisions directing the defendantto pay the college expenses for each of the parties' children until each child reaches the age of 21,and directing that the defendant shall receive a credit toward his child support obligation duringany period the children attend school away from home, (2) by deleting the 14th decretalparagraph thereof directing the defendant to pay spousal maintenance on the 1st and 15th of eachmonth in equal payments of $5,769.23, (3) by deleting from the 15th decretal paragraph thereofthe provision directing the defendant to pay maintenance for the duration of the plaintiff'slifetime and substituting therefor a provision directing the defendant to pay maintenance in thesum of $12,500 per month for a period of 15 years, (4) by deleting from the 18th decretalparagraph thereof the provision awarding the plaintiff 15% of the value of the defendant'spartnership interest and substituting therefor a provision awarding the plaintiff 20% of the valueof the defendant's partnership interest to be paid in six annual payments of $100,000, with thefirst payment to be made within 5 days of the entry of judgment and thereafter on the anniversaryof such date in each of the succeeding 5 years, with interest to accrue on the unpaid balance at therate of 6% per annum, (5) by deleting from the [*2]18th decretalparagraph thereof items (i), (ii), and (iii), and substituting therefor provisions stating (i) thedefendant's share of the proceeds shall be reduced by the sum of $104,000 for pendente litearrears owed by the defendant, (ii) the plaintiff's share of the proceeds shall be reduced by onehalf of the total of the defendant's payments of principal on the mortgage for the maritalresidence, and (iii) the plaintiff's share of the proceeds shall be reduced by the sum of $19,000 forthe overdraft repaid by the defendant, and (6) by adding a provision thereto directing thedefendant to maintain a life insurance policy for the benefit of the plaintiff in an amount not lessthan $1,500,000 during years 1 through 5 of his maintenance obligation, and thereafter, duringyears 6 through 10, the defendant shall maintain said policy in the amount of not less than$750,000, and during years 11 through 15 in an amount not less than $500,000 as so modified,the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.
The Supreme Court's award of lifetime maintenance to the wife was an improvident exerciseof discretion. In view of the wife's age, the sizable distributive award she received, and her equalshare of the husband's retirement benefits, the award of lifetime maintenance was inappropriate(see Genatowski v Genatowski, 43AD3d 1105 [2007]; Cuozzo vCuozzo, 2 AD3d 665 [2003]; Klein v Klein, 296 AD2d 533 [2002]).Accordingly, we find that an award of $12,500 per month in maintenance for a period of 15 yearsis appropriate under the circumstances of this case.
We agree with the plaintiff's contention that the Supreme Court should have directed thedefendant to maintain life insurance in her favor to secure his maintenance obligation and thedistribution of the plaintiff's share of the value of the defendant's partnership interest (seeDomestic Relations Law § 236 [B] [8] [a]; Hartog v Hartog, 85 NY2d 36 [1995];DeNapoli v DeNapoli, 282 AD2d 494 [2001]; Miness v Miness, 229 AD2d 520[1996]).
We note that the judgment appealed from did not contain a provision directing the husbandto pay for the college expenses of the children. In the decision upon which the judgment wasbased, the Supreme Court stated that "the [husband's] income is more than adequate to pay for[the childrens'] college educations." The Supreme Court also found that the husband shouldreceive a credit against his child support obligation during any period the children attendedschool away from home. In this regard, the husband conceded at oral argument that where thereis an inconsistency between a judgment and the decision upon which it is based, the decisioncontrols, and such an inconsistency may be corrected on appeal (see Green v Morris, 156AD2d 331 [1989]). Therefore, we have modified the judgment accordingly.
Under the circumstances of this case, the plaintiff is entitled to 20% of the value of thedefendant's partnership interest. In addition, the defendant's share of the net proceeds realizedupon the sale of the marital residence must be reduced as set forth in the decretal paragraph of thisdecision and order.
The parties' remaining contentions are either without merit, unpreserved for appellate review,or not properly before this Court. Fisher, J.P., Miller, Carni and Dickerson, JJ., concur.