| Massirman v Massirman |
| 2010 NY Slip Op 08712 [78 AD3d 1021] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Dana Massirman, Respondent, v Sharon Massirman,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Rockland County (Nelson, J.), dated July 25,2008, as awarded her only five years of maintenance, awarded her a distributive share of only25% of the plaintiff's interest in a business, and awarded her an attorney's fee in the sum of only$20,000.
Ordered that the judgment is affirmed insofar as appealed from, without costs ordisbursements.
"The trial court, which had the opportunity to view the demeanor of the witnesses, [is] in thebest position to gauge their credibility" (Peritore v Peritore, 66 AD3d 750, 753 [2009];see Varga v Varga, 288 AD2d 210, 211 [2001]). Here, we perceive no basis to disturb theSupreme Court's conclusion that the defendant's credibility was "diminished by her failure toproduce business records, and her failure to list significant assets on her initial net worthstatement," including any mention of her business, Alchemy Fashions. Moreover, "[t]he paucityof information provided . . . and the minimal efforts expended by the [defendant] inattempting to provide . . . documentation of [her] finances, clearly display[ed] alack of good faith" on her part (Richter v Richter, 131 AD2d 453, 455 [1987]).
Moreover, the "amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court, and every case must be determined on its unique facts" (Grasso vGrasso, 47 AD3d 762, 764 [2008]; see Brooks v Brooks, 55 AD3d 520 [2008];DeVries v DeVries, 35 AD3d 794, 796 [2006]). "Maintenance is designed to give thespouse economic independence, and should continue only as long as is required to render therecipient self-supporting" (Schenfeld v Schenfeld, 289 AD2d 219, 220 [2001] [citationsomitted]; see DeVries v DeVries, 35 AD3d at 796; Palestra v Palestra, 300 AD2d288, 289 [2002]). Here, the defendant contends that the Supreme Court improvidently exercisedits discretion in failing to either award her maintenance for life or for a duration longer than fiveyears. However, the Supreme Court found that the defendant offered no evidence of ill health andthat there was no evidence that she "reduce[d] or [lost] lifetime earning capacity as a result ofhaving foregone or delayed education, training, employment, or career opportunities during themarriage" (Palestra v Palestra, 300 AD2d at 289). Indeed, except for several years beforeand after the parties' son was born, the defendant continuously worked in the field of high-endclothing retail, operating her own businesses for most of the marriage. Moreover, the SupremeCourt credited the plaintiff's testimony regarding the declining state of his business, and rejectedthe defendant's testimony that [*2]her business did not yield anyprofits in light of her failure to provide the requisite documentation. Accordingly, under all of thecircumstances, the maintenance award was proper (cf. Lovece v Lovece, 245 AD2d 345[1997]).
In addition, contrary to the defendant's contention, she was not entitled to maintenanceretroactive to the date of her pendente lite application. The purpose of a maintenance award isdistinct from that of pendente lite relief (see Jordan v Jordan, 2 AD3d 687 [2003]). Therecord herein indicates that the defendant's applications for pendente lite relief were denied andthat no appeals were taken therefrom. Although an award of maintenance can be maderetroactive "as of the date of the application therefor" (Domestic Relations Law § 236 [B][6] [a]), since the defendant did not commence this divorce action, her only request formaintenance was made at the trial. Therefore, the Supreme Court properly directed that itsmaintenance award to the defendant would commence as of April 23, 2008, the date of thedecision after trial (see Domestic Relations Law § 236 [B] [6] [a]).
The Supreme Court providently exercised its discretion in awarding the defendant adistributive award of only 25% of the plaintiff's interest in a business. The evidence adduced attrial demonstrated that the defendant's role in the plaintiff's career was minimal, that shecontinued her own career, and that she made only indirect contributions to the plaintiff's business(see Wagner v Dunetz, 299 AD2d 347, 349 [2002]; Chalif v Chalif, 298 AD2d348, 349 [2002]; Granade-Bastuck v Bastuck, 249 AD2d 444, 445 [1998]).
The defendant's remaining contention is without merit. Santucci, J.P., Balkin, Belen andChambers, JJ., concur.