| Baron v Baron |
| 2010 NY Slip Op 02079 [71 AD3d 807] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Wendy Baron, Appellant, v Stephen A. Baron,Respondent. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, LakeSuccess, N.Y. (Steven J. Eisman and Daniel H. Smith of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Ross, J.), enteredSeptember 11, 2008, which, upon a decision of the same court (Jonas, J.), dated November 21,2006, made after a nonjury trial, and upon an order of the same court dated December 8, 2006,awarded her only a 20% share of the defendant's company, awarded her maintenance in theamount of only $5,769.23 per week for a period of only 10 years, taxable to her, retroactive tothe date of commencement of the action, failed to award her pendente lite maintenance arrears,awarded her a distributive award in the sum of only $4,566,857.90 with statutory interest fromthe date of entry of the judgment, to be paid by the defendant in installments of $450,000 peryear for a period of 10 years and the remaining balance to be paid in the eleventh year, failed todirect the defendant to maintain a life insurance policy for her benefit, and directed that eachparty be responsible for their respective counsel and expert fees.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff maintenance in the amount of $5,769per week for a period of 10 years, taxable to her, retroactive to the date of commencement of theaction and substituting therefor a provision awarding her maintenance in the amount $5,769 perweek, taxable to her, until the first of either her remarriage, her attainment of age 66, or herdeath, (2) by deleting the provision thereof directing that each party be responsible for theirrespective counsel and expert fees and substituting therefor a provision directing the defendant topay the plaintiff's counsel fees in the sum of $125,000 and expert fees in the sum of $50,000, (3)by deleting the provision thereof awarding the plaintiff statutory interest on the distributiveaward in the sum of $4,566,857.90 only from the date of entry of the judgment, and substitutingtherefor a provision awarding the plaintiff statutory interest on the distributive award in the sumof $4,566,857.90 from June 30, 2002, and (4) by adding thereto a provision directing thedefendant to maintain a life insurance policy for the benefit of the plaintiff until payment of thedistributive award and maintenance is completed in an amount sufficient to secure the amountsof the distributive award and the maintenance obligation; as so modified, the judgment isaffirmed insofar as appealed from, with costs to the plaintiff, and the order dated December 8,2006, is modified accordingly.[*2]
Contrary to the plaintiff's contentions, the Supreme Courtprovidently exercised its discretion in awarding the plaintiff a 20% share of the defendant'scompany. "Although in a marriage of long duration, where both parties have made significantcontributions to the marriage, a division of marital assets should be made as equal as possible. . . there is no requirement that the distribution of each item of marital property bemade on an equal basis" (Griggs vGriggs, 44 AD3d 710, 713 [2007], quoting Chalif v Chalif, 298 AD2d 348, 349[2002]). Here, the 20% share takes into account the plaintiff's minimal direct and indirectinvolvement in the defendant's company, while not ignoring her contributions as the primarycaretaker for the parties' children, which allowed the defendant to focus on his business (seeVentimiglia v Ventimiglia, 307 AD2d 993, 994 [2003]; Wagner v Dunetz, 299AD2d 347, 349 [2002]; Chalif v Chalif, 298 AD2d at 349; Granade-Bastuck vBastuck, 249 AD2d 444, 445 [1998]).
"[T]he amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its own unique facts" (Wortman v Wortman, 11 AD3d604, 606 [2004]; see Grumet vGrumet, 37 AD3d 534, 535 [2007]). The court must consider the factors enumerated inDomestic Relations Law § 236 (B) (6) (a), which include the pre-divorce standard ofliving of the parties, the income and property of the parties, the distribution of property, theduration of the marriage, the present and future earning capacity of the parties, the ability of theparty seeking maintenance to be self-supporting, and the reduced or lost earning capacity of theparty seeking maintenance (seeMeccariello v Meccariello, 46 AD3d 640, 641-642 [2007]; Griggs v Griggs, 44AD3d at 711-712). The plaintiff's contentions that the Supreme Court should have awarded hernondurational maintenance and that the award should have been nontaxable to her are withoutmerit. Due to her sizable distributive award, a lifetime maintenance award was not warranted (see Charles v Charles, 53 AD3d468, 469 [2008]; Genatowski vGenatowski, 43 AD3d 1105, 1106 [2007]). It was also appropriate for the maintenanceaward to be taxable to the plaintiff (see Markopoulos v Markopoulos, 274 AD2d 457,459 [2000]). However, in light of the parties' ages and their lifestyle during the marriage, as wellas their financial circumstances, the Supreme Court should have awarded the plaintiffmaintenance until the plaintiff becomes eligible for full Social Security benefits at the age of 66,remarries, or dies (see Hamroff vHamroff, 35 AD3d 365, 366 [2006]; Penna v Penna, 29 AD3d 970, 972 [2006]; Taylor vTaylor, 300 AD2d 298, 299 [2002]).
The Supreme Court should have directed the defendant to maintain life insurance in theplaintiff's favor to secure his maintenance obligation and the distribution of the plaintiff's shareof the value of his business (see Domestic Relations Law § 236 [B] [8] [a]; Charles v Charles, 53 AD3d 468,469 [2008]; Kaplan v Kaplan, 51AD3d 635, 637 [2008]; Comstockv Comstock, 1 AD3d 307, 308 [2003]).
The determination of what constitutes reasonable counsel fees is within the court's discretion(see DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]; Stadok v Stadok, 25 AD3d 547[2006]; Herzog v Herzog, 18 AD3d707, 709 [2005]). In its determination of an attorney's fee application, the trial court mustconsider the relative financial circumstances of the parties, the relative merit of their positions,and the tactics of a party in unnecessarily prolonging the litigation (see Matter of Brink v Brink, 55 AD3d601, 602 [2008]; Kaplan v Kaplan, 51 AD3d at 637; Grumet v Grumet, 37AD3d at 536-537; Ventimiglia vVentimiglia, 36 AD3d 899 [2007]). The Supreme Court improvidently exercised itsdiscretion by declining to award attorney and expert fees to the plaintiff. The Supreme Courtfocused exclusively upon the size of her equitable distribution and maintenance awards to theexclusion of other factors. Specifically, the Supreme Court failed to consider the defendant'sobstructionist and deceptive tactics which prolonged the litigation. These tactics, which includedhis failures to provide full and timely disclosure that impeded a determination of the valuation ofhis business and his finances, and failures to appear for his own deposition and for a preliminaryconference, were noted with disapproval by the court. The defendant's lack of cooperation led tothe Supreme Court appointing a referee to supervise discovery. He also prolonged the trial byattempting to convince the Supreme Court through his testimony that he had transferred 49% ofhis business to a third party despite being unable to produce any original documentary evidenceof such an agreement. Therefore, in consideration of all the relevant factors, including thedefendant's misconduct and the financial circumstances of the parties, the plaintiff should beawarded the sum of $125,000 as an attorney's fee and the sum of $50,000 as an expert fee, whichis one half of the fees sought (see Grumet v Grumet, 37 AD3d at 536-537).[*3]
The plaintiff also should have been awarded prejudgmentinterest on the distributive award of $4,566,858. Here, the marital assets were valued as of June30, 2002, and the plaintiff is entitled to interest from that date (see Selinger v Selinger,232 AD2d 471, 473 [1996]; Litman v Litman, 280 AD2d 520, 523 [2001]). Additionally,an award of prejudgment interest is appropriate where, as here, the defendant, in failing toprovide certain financial documents and falsely claiming to have transferred 49% of his businessto a third party, attempted to conceal the valuation of the business and prolonged the litigation(see Lipsky v Lipsky, 276 AD2d 753, 754 [2000]).
The plaintiff's remaining contentions are either without merit or not properly before thisCourt. Mastro, J.P., Balkin, Belen and Chambers, JJ., concur.