| Miceli v Miceli |
| 2010 NY Slip Op 08713 [78 AD3d 1023] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Robert A. Miceli, Respondent, v Jo Ann Miceli,Appellant. |
—[*1] Karen G. Brand, P.C., Manhasset, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Brandveen, J.),entered April 9, 2009, which, upon an order of the same court dated June 23, 2008, denying hermotion for an award of an attorney's fee, and upon a decision of the same court enteredSeptember 15, 2008, made after a nonjury trial, inter alia, directed that the parties wereresponsible for their respective attorney's fees, determined that the plaintiff's life insurance policywith New York Life was separate property of the plaintiff, awarded the plaintiff 50% of her"North Fork savings account," awarded the plaintiff 100% of the remainder of the proceeds of asettlement of the parties' personal injury action, being held in escrow by the plaintiff's counsel,directed the plaintiff to pay her maintenance in the sum of only $125 per month from April 9,2009, until the defendant reaches the age of 65, and failed to direct the plaintiff to maintain lifeinsurance for her benefit.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof determining that the plaintiff's life insurancepolicy with New York Life was separate property of the plaintiff, and substituting therefor aprovision determining that the policy is marital property and awarding the defendant 50% of thecash surrender value thereof, representing her distributive share, (2) by deleting the provisionthereof awarding the plaintiff 50% of the defendant's "North Fork savings account" andsubstituting therefor a provision determining that the account is the separate property of thedefendant, (3) by deleting the provision thereof awarding the plaintiff 100% of the remainder ofthe proceeds, as held in escrow by the plaintiff's counsel, of a settlement of the parties' personalinjury action, and substituting therefor a provision awarding the plaintiff 60%, and the defendant40%, respectively, of the remainder of the proceeds of the settlement, (4) by deleting theprovision thereof directing the plaintiff to pay maintenance to the defendant in the sum of $125per month from April 9, 2009, until the defendant reaches the age of 65, and substituting therefora provision directing the plaintiff to pay maintenance to the defendant in the sum of $500 permonth, until the defendant reaches the age of 65, which award shall be retroactive to May 28,2004, and such retroactive maintenance shall be paid in monthly installments of $150, until paidin full, and (5) by adding thereto provisions directing the plaintiff to (a) name the defendant as abeneficiary of 50% of the value of the life insurance policy he holds through his employer, (b)continue his life insurance policy with New York Life, or [*2]inthe event that policy has been terminated, to purchase a whole or term life insurance policy witha face value of $50,000, and to name the defendant as the beneficiary of that policy, with theproviso that he shall not borrow against, or otherwise encumber, that policy, and (c) provide thedefendant with certificates of insurance for the aforementioned polices; as so modified, thejudgment is affirmed insofar as appealed from, without costs or disbursements, and the matter isremitted to the Supreme Court, Nassau County, for proceedings consistent herewith, and for theentry of an appropriate amended judgment thereafter.
In reviewing a determination made after a nonjury trial, this Court's power "is as broad asthat of the trial court . . . and . . . as to a bench trial it may render thejudgment it finds warranted by the facts" (Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]; see Heiny v Heiny, 74 AD3d 1284,1286-1287 [2010]).
The Supreme Court's determination that the plaintiff's whole life insurance policy with NewYork Life, which had a face value of $50,000, was his separate property, is unsupported by therecord, since there was no evidence that the policy was not purchased with marital funds (seeDomestic Relations Law § 236 [B] [1] [c], [d] [1]). Accordingly, that asset is maritalproperty, and the defendant is entitled to a 50% distributive award of that asset (seeDougherty v Dougherty, 256 AD2d 714, 715 [1998]).
The Supreme Court erred in awarding the plaintiff 50% of the defendant's "North Forksavings account," as that account comprises the defendant's Workers' Compensation and SocialSecurity disability benefits, which are her separate property and are not subject to equitabledistribution (see Domestic Relations Law § 236 [B] [1] [d] [2]; Masella vMasella, 67 AD3d 749, 750 [2009]; Fleitz v Fleitz, 200 AD2d 874, 875 [1994];see generally Dolan v Dolan, 78 NY2d 463, 466 [1991]).
A settlement award emanating from a personal injury action commenced by the parties ispartially separate property of the plaintiff and partially separate property of the defendant becauseboth parties were named plaintiffs in the personal injury action at issue (see Richmond vRichmond, 144 AD2d 549, 551 [1988]). The Supreme Court improvidently exercised itsdiscretion in allocating 100% of the settlement proceeds to the plaintiff's claim in the personalinjury action, and, thus, in awarding the remainder of the proceeds of that settlement, which wereheld in escrow by the plaintiff's counsel, to the plaintiff. Based upon the relevant evidenceregarding the personal injury action, the plaintiff is entitled to 60%, and the defendant is entitledto 40%, respectively, of the remainder of the proceeds of the settlement.
In determining the amount of maintenance, the Supreme Court failed to address the parties'predivorce standard of living, and did not adequately take account of the defendant's disabilityinsofar as it detrimentally affects her ability to become self-supporting. Based on this record, theamount of the plaintiff's maintenance obligation should be increased from the sum of $125 permonth to the sum of $500 per month.
The Supreme Court also erred in determining that the maintenance award was effective as ofApril 9, 2009. An award of maintenance is effective as of the date of application therefor (seeDomestic Relations Law § 236 [B] [6] [a]; Kilkenny v Kilkenny, 54 AD3d816, 821 [2008]; Schiffer v Schiffer, 21 AD3d 889, 890 [2005]). Thus, here, contrary tothe plaintiff's contention, his maintenance obligation should have been effective retroactive toMay 28, 2004, the date of the defendant's application for maintenance, and the plaintiff isdirected to pay such retroactive maintenance in monthly installments of $150 until paid in full(see Domestic Relations Law § 236 [B] [6] [a]). Accordingly, we remit the matterto the Supreme Court, Nassau County, for calculation of the amount of retroactive maintenancedue, and the entry of an appropriate amended judgment thereafter.
As the defendant contends, it is appropriate in this case to require the plaintiff to maintainlife insurance on her behalf in order to secure his maintenance obligation (see DomesticRelations Law § 236 [B] [8] [a]; Hartog v Hartog, 85 NY2d 36, 50 [1995];Charles v Charles, 53 AD3d 468, 469 [2008]).[*3]
The defendant's remaining contentions are without merit.Skelos, J.P., Eng, Austin and Sgroi, JJ., concur.