| Litvak v Litvak |
| 2009 NY Slip Op 04391 [63 AD3d 691] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Tsipora Litvak, Respondent-Appellant, v Stephen Litvak,Appellant-Respondent. |
—[*1] Moran, Brodrick & Elliot, Garden City, N.Y. (Thomas A. Elliot of counsel), forrespondent-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, Nassau County (Iannacci, J.), enteredOctober 30, 2007, which, inter alia, after a nonjury trial, upon a decision of the same court datedJuly 20, 2007, directed him to pay the plaintiff nondurational maintenance in the sum of $4,000per month from September 12, 2007, until she reaches the age of 65, and $2,000 per monththereafter until the death of either party or the plaintiff's remarriage, directed that the award ofnondurational maintenance be retroactive to April 12, 2004, the date of the commencement ofthe divorce action, directed that he maintain a life insurance policy naming the plaintiff as anirrevocable beneficiary in the face amount of not less than the sum of $800,000, determined thatthe sum of $50,000 he borrowed did not constitute marital debt, and determined that certainfunds he inherited constituted marital property, and the plaintiff cross-appeals, as limited by herbrief, from so much of the same judgment as directed the defendant to pay her maintenance inthe sum of only $4,000 per month from September 12, 2007, until she reaches the age of 65, andonly $2,000 per month thereafter until the death of either party or the plaintiff's remarriage, anddenied her request for an award of an attorney's fee.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof directing the defendant to maintain a life insurance policy namingthe plaintiff as an irrevocable beneficiary in the face amount of not less than the sum [*2]of $800,000, and substituting therefor a provision directing thedefendant to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary inthe face amount of not less than $675,000 until the plaintiff reaches the age of 65, and in the faceamount of $425,000 thereafter, and (2) by deleting from the ninth decretal paragraph thereof theprovision denying the plaintiff's request for an attorney's fee; as so modified, the judgment isaffirmed insofar as appealed and cross-appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Nassau County, for a hearing and determination of anappropriate award of an attorney's fee, and the entry of an appropriate amended judgmentthereafter.
When evaluating whether a court providently exercised its discretion in awardingmaintenance, the factors to be considered are whether the award encourages economicindependence, the present and future earning capacity of the parties, the reduced or lost lifetimeearning capacity of the party seeking maintenance, the duration of the marriage, whether theamount and duration of the award is appropriate in light of the pre-separation standard of living,the reasonable needs of the recipient spouse, the income and property of the parties, thedistribution of the marital property, and the health of the parties (see Hartog v Hartog, 85NY2d 36, 51-52 [1995]; Appel v Appel,54 AD3d 786, 787 [2008]; Bean v Bean, 53 AD3d 718, 723 [2008]; Grumet v Grumet, 37 AD3d 534,535-537 [2007]; Scarlett v Scarlett,35 AD3d 710, 711 [2006]; Comstock v Comstock, 1 AD3d 307, 308 [2003]).
Under the circumstances of this case, including the parties' relative incomes and availableassets, the Supreme Court did not improvidently exercise its discretion in awardingnondurational maintenance to the wife in the sum of $4,000 per month until she reaches the ageof 65 and the sum of $2,000 per month thereafter until the death of either party or the plaintiff'sremarriage (see Appel v Appel, 54 AD3d at 788; Borra v Borra, 218 AD2d 780[1995]; cf. Bean v Bean, 53 AD3d at 723; Marion v Marion, 300 AD2d 369, 370[2002]).
The Supreme Court properly directed that the maintenance obligation be made retroactive tothe filing of the summons with notice (see King v Geovanis, 45 AD3d 273 [2007]; Schiffer v Schiffer, 21 AD3d 889,890 [2005]). However, under the circumstances of this case, including the ages of the parties, theamount of life insurance the defendant was required to carry by the Supreme Court wasexcessive, and has been reduced accordingly (see Domestic Relations Law § 238;Reed v Reed, 55 AD3d 1249,1251 [2008]; Penna v Penna, 29AD3d 970, 971 [2006]; Benzaken vBenzaken, 21 AD3d 391 [2005]; Konigsberg v Konigsberg, 3 AD3d 330, 331 [2004]; Holtermanv Holterman, 307 AD2d 442, 442-443 [2003], affd 3 NY3d 1 [2004]).
The Supreme Court correctly determined that approximately $193,000 inherited by thedefendant from his grandfather constituted marital property inasmuch as the defendantcommingled it with the marital assets (see Crescimanno v Crescimanno, 33 AD3d 649 [2006];McManus v McManus, 298 AD2d 189 [2002]; Pauk v Pauk, 232 AD2d 386, 390[1996]; cf. Chamberlain v Chamberlain,24 AD3d 589, 593 [2005]; Wade v Steinfeld, 15 AD3d 390, 391 [2005]).
The Supreme Court did not address whether a certain municipal bond was or was not maritalproperty in its decision after trial, and the judgment appealed from contains no decretalparagraph with respect to this asset. Thus, the issue remains pending and undecided by theSupreme Court, and is therefore not before this Court (see Mogollon v Mogollon, 259AD2d 678, 679 [1999]).
The Supreme Court improvidently exercised its discretion in denying the plaintiff's requestfor an attorney's fee. Given the great disparity between the incomes of the parties in this [*3]case, the Supreme Court should have awarded the plaintiff anattorney's fee (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; Maher vMaher 196 AD2d 530 [1993]; Domestic Relations Law § 237).
The defendant's remaining contention is without merit. Spolzino, J.P., Belen, Lott andAustin, JJ., concur.