| Lorenz v Lorenz |
| 2009 NY Slip Op 04797 [63 AD3d 1361] |
| June 11, 2009 |
| Appellate Division, Third Department |
| Pamela Lorenz, Respondent, v William Lorenz,Appellant. |
—[*1] Moran & Gottlieb, Kingston (Andrea Moran of counsel), for respondent.
Spain, J. Appeal from a judgment of the Supreme Court (Work, J.), entered June 19, 2008 inUlster County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
In October 2006, after more than 33 years of marriage, plaintiff commenced this divorceaction. There are two emancipated children of the marriage. After a bench trial, at which timeboth parties were 54 years of age, Supreme Court, among other things, equally distributed themarital property and awarded maintenance to plaintiff in the amount of $500 per week,retroactive to September 4, 2007 and until such time as plaintiff can draw full Social Securitybenefits, apparently when she becomes 66. Defendant appeals.
The principal issues raised by defendant on appeal focus on Supreme Court's award ofmaintenance. Initially, defendant asserts that the court abused its discretion in awardingmaintenance because plaintiff is capable of being self-supporting and, in the alternative, that theamount and duration were excessive. In maintenance determinations "the amount of earningsnecessary to enable the recipient to become self-supporting must be determined with somereference to the standard of living of the parties, as well as the earning capacity of each party;and these factors carry more weight in a marriage of long duration" (Garvey v Garvey,223 AD2d 968, 970 [1996]). Here, in fashioning its award, the court considered each of therelevant statutory factors (see Domestic Relations Law § 236 [B] [6]), includingthe parties' incomes, their future earning capacity, and the long duration of the marriage.[*2]
The testimony of the parties and their 2006 joint incometax returns provide ample record proof to support Supreme Court's conclusion that defendant'sannual income was in excess of $100,000 and plaintiff's income was upwards of $20,000.Whereas defendant is in good health, plaintiff has a back problem—which recentlyrequired surgery—and a heart arrhythmia ailment, each of which impacts negatively onher future earning capacity as a self-employed hairdresser. While defendant was building hisskills and a lucrative career, plaintiff was devoting a good portion of her time and talent tendingto the needs of their children and attending to the family's domestic needs. Indeed, although thepurpose of maintenance is to provide temporary support while the recipient develops the skillsand experience necessary to become self-sufficient (see Garvey v Garvey, 223 AD2d at970), self-sufficiency "is not always possible" (Wheeler v Wheeler, 12 AD3d 982, 983 [2004]), and we find amplerecord evidence to support the court's conclusion that plaintiff's potential to becomeself-sufficient was very low. Moreover, the fact that plaintiff will eventually obtain her share ofthe marital assets is not a bar to an appropriate period of maintenance (see Kay v Kay,302 AD2d 711, 712 [2003]), especially where, as here, Supreme Court did not favor plaintiff inits 50-50 distribution of the marital property.
Further, we find that the amount of the maintenance award is within defendant's means andappropriately crafted to meet plaintiff's needs, providing some assurance that she will be able tomaintain their predivorce standard of living. Supreme Court found that plaintiff will now berequired to pay for her own health insurance, estimated to cost between $350 and $500 permonth, and, in the likely event she will not be able to purchase defendant's half of the maritalresidence, she will have to find a new place to live. The court also considered defendant's abilityto deduct his maintenance payments from his income taxes. On this record, we cannot say thatthe amount set by the court of $500 per week was an abuse of discretion.
As for the duration of the award, we reject defendant's contention that Supreme Court erredin failing to address the issue of when defendant intends to retire, as he neither raised this issuebefore the court nor did he assert that he has such plans in the near future. We also rejectdefendant's assertion that he is entitled to 10 months of credit against his maintenance obligationfor amounts he paid for defendant's health insurance during the period leading up to thejudgment of divorce. Again, this was not raised during defendant's presentation of proof andthere is no evidence in the record as to what part of defendant's monthly payments for healthinsurance, as reported in his financial disclosure affidavit, was attributable to plaintiff's medicalcoverage. Moreover, defendant was credited with the $200 per week in temporary maintenancehe had paid back to September 4, 2007.
However, while we agree with Supreme Court that, based upon her genuine need,maintenance should continue until plaintiff can draw Social Security benefits, we conclude thatthe court's decision to continue maintenance until plaintiff is entitled to full SocialSecurity benefits requires modification. Under this provision, plaintiff could elect to draw areduced amount of Social Security at age 62 and still receive full maintenance. Accordingly, theduration should be modified to reflect that maintenance shall terminate when plaintiff begins todraw Social Security benefits, or when she reaches full Social Security age, whichever occursfirst (see e.g. Wojewodzic v Wojewodzic 300 AD2d 985, 986-987 [2002]).
We next reject defendant's assertion that Supreme Court erred in failing to order thatmaintenance shall terminate upon the death of either party or plaintiff's valid or invalid marriage.Such language is unnecessary because the Domestic Relations Law, in more than one place,[*3]provides for the termination of any order of maintenance"upon the death of either party or upon the recipient's valid or invalid marriage" (DomesticRelations Law § 236 [B] [1] [a]; [6] [c]). Likewise, we find no merit in defendant'sassertion that all marital investment accounts should have been divided not by their value at thetime of trial but by the number of shares owned at that time.
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgmentis modified, on the facts, without costs, by ordering that defendant shall pay maintenance in theamount of $500 per week retroactive to September 4, 2007 until plaintiff shall begin to drawSocial Security benefits or when plaintiff reaches the age when she can draw full Social Securitybenefits on February 23, 2019, whichever occurs first, and, as so modified, affirmed.