| Ndulo v Ndulo |
| 2009 NY Slip Op 07708 [66 AD3d 1263] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Marjorie Gomolemo Ndulo, Appellant, v Muna Baron Ndulo,Respondent. |
—[*1] Williamson, Clune & Stevens, Ithaca (Cynthia Grant Bowman of counsel), forrespondent.
Spain, J.P. Appeals (1) from a judgment of the Supreme Court (Mulvey, J.), entered April 4,2008 in Tompkins County, ordering, among other things, equitable distribution of the parties'marital property, upon a decision of the court, and (2) from an order of said court, entered June20, 2008 in Tompkins County, which partially denied plaintiff's motion for reconsideration.
In July 2004, plaintiff commenced the instant action for divorce. The parties were married inthe Republic of Zambia in 1975, where defendant became a professor at, and eventually dean of,the University of Zambia Law School. During this period, four daughters were born to theparties and plaintiff worked as a dental technician. In 1986, the family moved to Vienna, Austriawhere defendant took a position with the United Nations and plaintiff devoted her energies to thecare of the children and support of defendant's career. In 1996, defendant joined the faculty atCornell Law School and the family moved to the City of Ithaca, Tompkins County whereplaintiff was first employed part time in a retail store and eventually as a full-time counselor at alocal agency which provides assistance to people with special needs.
Marital assets include separate retirement accounts, the marital dwelling in Ithaca, realproperty in England and South Africa and real estate holdings and business interests in Zambia.Marital debt consists of the mortgage on the marital dwelling, credit card balances and balances[*2]on a number of loans taken out in defendant's name that arerelated to the high cost of educating their children over the years, expenses which continue toaccumulate. The children have been educated at expensive private schools and Ivy Leaguecolleges, and all but the youngest—who was still in college at the time of thetrial—have obtained graduate degrees.
Following a trial, Supreme Court ordered, among other things, an award of two separateparcels of real estate in Zambia—one each—to defendant and plaintiff, the sale ofall remaining real estate—including the marital dwelling—with the proceeds to be adivided equally between the parties, along with the remainder of the parties' marital assets,maintenance of $3,000 per month for five years to plaintiff, and the remainder of their maritaldebt and all plaintiff's counsel fees to be paid by defendant. On a motion by plaintiff forreconsideration, the court found that an additional piece of Zambian real estate was maritalproperty, ordered the sale of all Zambian real estate by January 1, 2009 and awarded plaintiff50% of the marital portion of any preretirement death benefit payable from defendant's pensionaccount (see Kazel v Kazel, 3NY3d 331, 335 [2004]), but otherwise denied the motion. Plaintiff now appeals from boththe April 2008 judgment of divorce and the June 2008 order partially denying reconsideration.
Upon our review of the full record before us, we find merit in plaintiff's major contentionthat Supreme Court's award of maintenance in the amount of $3,000 per month for a period offive years was insufficient. The amount and duration of maintenance is an issue generally left tothe sound discretion of the trial court (see Schwalb v Schwalb, 50 AD3d 1206, 1210 [2008]; Burtchaell v Burtchaell, 42 AD3d783, 784-785 [2007]; Carman vCarman, 22 AD3d 1004, 1008 [2005]; Sperling v Sperling, 165 AD2d 338, 341[1991]) based upon the enumerated factors set forth in Domestic Relations Law § 236 (B)(6) (a), as well as the predivorce standard of living of the recipient spouse (see Hartog vHartog, 85 NY2d 36, 50-51 [1995]; Quinn v Quinn, 61 AD3d 1067, 1071 [2009]; Bean v Bean, 53 AD3d 718, 723[2008]). Maintenance is appropriate where, among other things, the marriage is of long duration,the recipient spouse has been out of the work force for a number of years, has sacrificed her orhis own career development or has made substantial noneconomic contributions to the householdor to the career of the payor (see Lorenzv Lorenz, 63 AD3d 1361, 1362 [2009]; Holterman v Holterman, 307 AD2d442, 442 [2003], affd 3 NY3d 1 [2004]; Semans v Semans, 199 AD2d 790, 793).The fact that a wife has the ability to be self-supporting by some standard of living does notmean that she is self-supporting in the context of the marital standard of living (see Hartog vHartog, 85 NY2d at 36; see also Summer v Summer, 85 NY2d 1014, 1016 [1995]).
At the time this action was commenced, as found by Supreme Court, there was significantdisparity in the parties' incomes with plaintiff earning $15,322 per year and defendant, as atenured law professor, earning $173,600 per year. The parties had been married for 29 years andwere each 59 years old. Although plaintiff had training in dental technology and worked as adental technician in Zambia early in their marriage, she forfeited her dental technology careerand has had, in the recent past, jobs at a retail store and a credit union, and presently at the localspecial needs agency.
Supreme Court considered these facts and all the relevant statutory factors (seeDomestic Relations Law § 236 [B] [6] [a]) in setting maintenance and in ordering thatdefendant pay the costs for continuation of plaintiff's health insurance coverage through hisemployer under COBRA for the maximum period available. The court also ordered that allmarital debt with the exception of the mortgage on the marital dwelling be paid by defendant,holding plaintiff harmless on those obligations, which the court found exceeded $200,000.Moreover, the court [*3]ultimately made defendant responsiblefor all plaintiff's counsel fees. As to the duration of the maintenance award, Supreme Courtlimited the award to a period of five years, finding a lifetime maintenance award to beunwarranted in light of the resources available to plaintiff upon the sale of the marital assets andplaintiff's responsibility for their marital debt.
Given the length of their marriage, defendant's ability to earn more than six times plaintiff'ssalary, the uncertainty with respect to the amount of the proceeds of the Zambian holdings,plaintiff's limited earning capacity and ability to improve her financial status due to her lack ofeducation and her age, the parties' predivorce standard of living, plaintiff's eventual loss of herexisting health benefits when the COBRA period expires, and defendant's plan to continueworking as long as he is healthy, we find it appropriate to extend the duration of maintenancebeyond the five years, at a reduced rate. Accordingly, at the expiration of the five years awardedby Supreme Court (April 1, 2013), maintenance shall continue at the rate of $2,000 per monthuntil defendant fully retires or plaintiff reaches the age of 70, whichever occurs first.
Next, plaintiff contends that Supreme Court's findings regarding marital debt were againstthe weight of the evidence and/or an abuse of discretion. Plaintiff argues that there wasinsufficient documentary and/or testimonial evidence to sustain the figures that the court reliedupon in calculating defendant's cumulative debt. We disagree. As the court made defendantresponsible for their marital debt, no itemization of that debt was necessary. While plaintiff takesissue specifically with the court's calculation of educational debt and the specific debts owed todefendant's family members and others, according deference to the court's fact-finding andcredibility determinations in such matters, we find that the court's categorizations, calculationsand allocations of those portions of the marital debt are supported in the record.
We also reject plaintiff's contention that Supreme Court's approach to its identification anddistribution of major items of marital property was against the weight of the evidence and anabuse of discretion. Such decisions are generally left to the exercise of the trial court's discretionand will not be disturbed so long as there is evidence in the record to support them, and all therelevant statutory factors have been considered (see Domestic Relations Law §236 [B] [5] [d]; Mairs v Mairs, 61AD3d 1204, 1206 [2009]; Carman v Carman, 22 AD3d at 1006; Smith v Smith, 8 AD3d 728, 729[2004]). Here, the court expressly applied each of the statutory factors based on the financialcircumstances of the parties and determined that an equal distribution of the marital property wasappropriate.
As significant questions exist as to the title to and value of the parties' interests in severalZambian real estate and business holdings, Supreme Court ordered the sale of an equaldistribution of the proceeds of these assets pending the outcome of the adjudication of anyunresolved ownership interests in Zambian courts. We reject plaintiff's assertion that, without theappointment of a referee or some other legal protection, the court's award of proceeds from theseproperties is rendered illusory because of defendant's connections in Zambia and his superiorresources. Contrary to plaintiff's argument, should any illicit transfers and or manipulation ofsale proceeds occur, plaintiff—who also has a presence in Zambia—is free to applyto Supreme Court for relief. Further, the court, in its subsequent decision and order, directeddefendant to "provide written notice and written updates to plaintiff regarding all effortsundertaken with regard to the remaining property interests," noting that both parties arerepresented by counsel and, therefore, sufficiently able to protect their interests in these maritalassets.[*4]
We do find merit in plaintiff's assertion with respect tothe investment accounts held in defendant's name, which included Momentum Wealth Fund,Columbia Funds and First National Bank Unit Trust accounts. The value of these three accountswas included in each party's list of marital assets and, therefore, were arguably considered inSupreme Court's decision to have defendant distribute $1,184 to plaintiff. However, it appearsthat the court overlooked these accounts in its calculations. Defendant, in his brief, has offered todivide these accounts equally based on their respective values as of the date of commencementof the divorce action. Inasmuch as such a determination would be in accord with the the court'sdistribution decision, the court's judgment should be modified to clarify that these threeinvestment accounts should be so distributed.
Finally, even assuming, as plaintiff contends, that there were disclosure violations on thepart of defendant, such violations were not shown to be willful, contumacious or prejudicial toplaintiff and, thus, do not require reversal (Matter of Duma v Edgar, 58 AD3d 1085,1086 [2009]; Maillard v Maillard, 243 AD2d 448, 449 [1997]; accord Kumar v Kumar, 63 AD3d1246, 1248 [2009]). We have considered plaintiff's remaining contentions, includingSupreme Court's failure to draw an adverse inference against defendant for his failure to call hisbrother—who resides in Zambia—as a witness and its failure to take judicial noticeof the exchange rate, and find them unpersuasive.
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment and orderare modified, on the facts, without costs, by ordering that maintenance continue beyond April 1,2013 at the reduced rate of $2,000 per month until defendant fully retires or plaintiff reaches theage of 70, whichever occurs first, and the proceeds of the Momentum Wealth Fund, ColumbiaFunds and First National Bank Unit Trust investment accounts, valued as of the date ofcommencement of this action, shall be equally divided between the parties, and as so modified,affirmed.