| Reed v Reed |
| 2008 NY Slip Op 07289 [55 AD3d 1249] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Danielle L. Reed, Respondent, v Gordon S. Reed,Appellant. |
—[*1] Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel) and Stiller &Vance, Buffalo, for plaintiff-respondent.
Appeal from an amended judgment of the Supreme Court, Erie County (Janice M. Rosa, J.),entered July 10, 2007 in a divorce action. The amended judgment, among other things,distributed the marital property and awarded plaintiff maintenance.
It is hereby ordered that the amended judgment so appealed from is unanimously modified onthe law by providing that maintenance shall terminate 13 years from the date of the amendedjudgment and by vacating the amount of life insurance defendant must maintain to secure hischild support and maintenance obligations and as modified the amended judgment is affirmedwithout costs, and the matter is remitted to Supreme Court, Erie County, for further proceedingsin accordance with the following memorandum: Defendant appeals from an amended judgmentof divorce that, inter alia, directed him to pay maintenance, child support and plaintiff's counselfees and expert witness fees, as well as distributed marital property. The parties were married in1987 and have three minor children. Supreme Court properly concluded that the trust created in1984 by defendant's paternal grandfather (GSR Trust) was the separate property of defendant andthat the trust created by defendant in 1986 prior to the parties' marriage (Quercus Trust)constituted marital property. Defendant "failed to trace the source of the funds [in the QuercusTrust] with sufficient particularity to rebut the presumption that they were marital property" (Massimi v Massimi, 35 AD3d400, 402 [2006], lv denied 9 NY3d 801 [2007]) and, indeed, plaintiff establishedthat the entirety of the Quercus Trust was transmuted into marital property as a result ofcommingling (see generally Haas v Haas, 265 AD2d 887, 888 [1999]; Rheinstein vRheinstein, 245 AD2d 1024, 1025 [1997]). Nevertheless, we note that the court erred indetermining in the alternative that plaintiff was entitled to a portion of the Quercus Trust basedon her contributions to its appreciation inasmuch as the alleged contributions of plaintiff to theappreciation of that trust consisted solely of her presence at annual meetings concerninginvestments.
We reject the further contention of defendant that he was entitled to a separate property creditfor funds that he contributed to pay off the mortgage on the marital residence and to [*2]improve that residence. Those funds were taken from maritalproperty (see generally Saasto v Saasto, 211 AD2d 708, 709 [1995]). Also contrary todefendant's contentions, the court properly determined that the interest in the Vast Oaks propertywas marital property inasmuch as it was acquired by the Quercus Trust, and the court properlydetermined the value of defendant's business interest in the company in which defendant was a50% owner. "Absent some evidence that the valuation [was] unreasonable or other credibleevidence showing a different value, it should not be disturbed" (Harmon v Harmon, 173AD2d 98, 107 [1992]).
Although we agree with defendant that the court erred in imputing various amounts of"phantom" income to him for purposes of determining child support, there is sufficient evidencein the record to support the amount of child support awarded to plaintiff. Contrary to defendant'scontention, in determining the combined parental income beyond the $80,000 cap, the courtproperly considered the standard of living that the children would have enjoyed had the marriagenot ended (see Domestic Relations Law § 240 [1-b] [c] [3]; [f] [3]; Matter ofCassano v Cassano, 85 NY2d 649, 653 [1995]). In addition, the court properly determinedthat the tax returns of the parties bore "little resemblance to the real available income" and thatdefendant had "available to him substantially more [income] than [what was] reported" (seeMatter of Buley v Buley, 142 AD2d 814, 815 [1988]; see also Carr v Carr, 171AD2d 776, 777 [1991]).
We agree with defendant, however, that the court erred in awarding plaintiff lifetimemaintenance, in light of plaintiff's age and work experience. Although " '[a]s a general rule, theamount and duration of maintenance are matters committed to the sound discretion of the trialcourt' " (Frost v Frost, 49 AD3d1150, 1150-1151 [2008]), the authority of this Court in determining issues of maintenance isas broad as that of the trial court, and we conclude that the award of maintenance is excessive(see Wipperman v Wipperman, 277 AD2d 1040, 1041 [2000]). Based on the statutoryfactors, including plaintiff's education and employment history, as well as the various distributiveawards (see Domestic Relations Law § 236 [B] [6] [a]), we conclude that plaintiffis capable of future self-support, and thus she is "entitled only to durational maintenance" for 13years from the date of the amended judgment (Sperling v Sperling, 165 AD2d 338, 342[1991]; see also Fruchter v Fruchter, 288 AD2d 942, 944 [2001]; Costello v Costello,268 AD2d 403 [2000]; Shew v Shew, 193 AD2d 1142 [1993]). We therefore modifythe amended judgment accordingly.
We also agree with defendant that the court erred in failing to provide for a reduction in theamount of his life insurance policy as his child support and maintenance obligations decrease (see Konigsberg v Konigsberg, 3 AD3d330, 331 [2004]; see also Matter ofAnonymous v Anonymous, 31 AD3d 955, 957 [2006]; Somerville v Somerville, 26 AD3d647, 649-650 [2006], lv dismissed in part and denied in part 7 NY3d 859 [2006]).We therefore further modify the amended judgment accordingly, and we remit the matter toSupreme Court to determine the amount of life insurance defendant must maintain to secure hischild support and maintenance obligations. Contrary to defendant's further contention, however,the court properly exercised its discretion in awarding plaintiff counsel fees for past servicesrendered and expert witness fees (see generally Panek v Panek, 231 AD2d 959 [1996]).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Martoche, J.P., Smith, Centra, Peradotto and Green, JJ.