| Sember v Sember |
| 2010 NY Slip Op 02696 [72 AD3d 1150] |
| April 1, 2010 |
| Appellate Division, Third Department |
| Kelly M. Sember, Respondent, v David J. Sember,Appellant. |
—[*1]
Rose, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 6, 2009in Ulster County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
The parties to this 18-year marriage have four children now ranging from 8 to 18 years ofage. After defendant left the marital residence and plaintiff commenced this action for divorce,the parties agreed to the ground of abandonment and that plaintiff would have sole legal andphysical custody of the children. After a bench trial of the remaining issues of equitabledistribution, maintenance and child support, Supreme Court issued a judgment that deniedplaintiff any maintenance, granted her exclusive use and possession of the marital residence, andrequired defendant to pay marital residence expenses, certain debts and child support. Defendantappeals.
Supreme Court did not err in awarding plaintiff exclusive possession, as there is awell-established preference for allowing the custodial parent to remain in the marital residencewith the minor children of the marriage unless that parent "can obtain comparable housing at alower cost or is financially incapable of maintaining the marital residence, or either spouse is inimmediate need of his or her share of the sale proceeds" (Nolan v Nolan, 215 AD2d 795,795 [1995]; see Stacey v Stacey, 52AD3d 1219, 1221 [2008]; Nissen vNissen, 17 AD3d 819, 820 [2005]; Goldblum v Goldblum, 301 AD2d 567, 568[2003]; see also Domestic Relations Law § 236 [B] [5] [f]). The record makesclear that plaintiff cannot obtain a comparable home with her available resources, and there is noevidence that she will be unable to maintain the marital [*2]residence with defendant paying the carrying charges. Further,Supreme Court expressly found defendant's claim that he could not afford to meet the financialobligations imposed by the judgment not to be credible, an assessment to which we defer (see e.g. Evans v Evans, 55 AD3d1079, 1081 [2008]). Nor was the marital residence, which the parties agreed was worth$350,000, their principal asset. They owned other, unencumbered real property with anagreed-upon value of $570,000 that Supreme Court ordered to be sold and the net proceedsdivided equally between them. Thus, defendant was not in immediate need of his share of theproceeds from the sale of the home.
Next, defendant challenges Supreme Court's direction that he pay off the mortgage, the homeequity loan and certain credit card debt. The record indicates that the credit card debt accruedonly after defendant abandoned the marital residence and left plaintiff unable to pay the normalliving expenses of herself and the children. In addition, the record supports Supreme Court'sfindings that defendant's income was at least four times greater than plaintiff's, he resided rentfree with his paramour despite testifying that he was paying rent to live elsewhere and he wasleasing a luxury automobile for over $700 per month. Given the wide disparity between theparties' incomes, defendant's sole ownership of his own business as a general contractor and hisprobable future financial prospects and circumstances compared to those of plaintiff, togetherwith the fact that plaintiff receives no maintenance, we must agree with Supreme Court's findingthat defendant is possessed of sufficient income, earning capacity and assets to meet theobligations imposed. Accordingly, we find no abuse of discretion in the Court's distribution ofdebt (see Domestic Relations Law § 236 [B] [5] [d]; Lewis v Lewis, 6 AD3d 837,839-840 [2004]).
We do, however, agree with defendant that the annual, fixed carrying charges he is requiredto pay for the home where the children reside should have been subtracted from the parties' grossannual income before computing his share of child support (see Coon v Coon, 29 AD3d 1106, 1111 [2006]; O'Connor vO'Connor, 241 AD2d 648, 649 [1997]; Posson v Posson, 229 AD2d 690, 692-693[1996]; Ciaffone v Ciaffone, 228 AD2d 949, 952 [1996]). Also, the obligation to pay forall reasonable maintenance and repairs of the home should not be open ended (see Richards vRichards, 207 AD2d 628, 629 [1994]; Chrisaidos v Chrisaidos, 170 AD2d 428, 429[1991]; Weinstein v Weinstein, 125 AD2d 301, 303 [1986]). Rather, the direction to payfor repairs and other maintenance should state a maximum monthly or yearly amount. Inasmuchas the record does not permit us to make these calculations or to set these amounts, we will remitthese issues to Supreme Court to recalculate child support or articulate its reasons for deviatingfrom the formula, and to fix a monetary limitation on the obligation to pay for maintenance andrepairs.
Finally, the $1 million life insurance policy securing defendant's child support obligation farexceeds his total support obligation. Thus, a policy with a smaller face value is called for hereand this issue will also be remitted to Supreme Court for further proceedings. In addition, thenecessary insurance should be obtained through a declining term policy reflecting defendant'sdecreasing obligation as the children each reach 21 years of age (see Mairs v Mairs, 61 AD3d1204, 1211 [2009]; Quinn vQuinn, 61 AD3d 1067, 1073 [2009]; Bean v Bean, 53 AD3d 718, 725 [2008]; Matter of Anonymous v Anonymous,31 AD3d 955, 957 [2006]; Somerville v Somerville, 26 AD3d 647, 649-650 [2006], lvdismissed and denied 7 NY3d 859 [2006]).
Mercure, J.P., Spain, Lahtinen and Stein, JJ., concur. Ordered that the judgment is modified,on the law and the facts, without costs, by reversing so much thereof as required defendant topay all costs of maintenance and repairs of the former marital residence, fixed defendant's childsupport obligation and required him to maintain life insurance in the amount of $1 million;matter remitted to the Supreme Court for determinations as to defendant's maximum obligationfor repairs and maintenance, the amount of child support and the amount of a declining lifeinsurance policy; and, as so modified, affirmed.