| Bayer v Bayer |
| 2011 NY Slip Op 00251 [80 AD3d 492] |
| January 18, 2011 |
| Appellate Division, First Department |
| Jayne Bayer, Respondent, v Steven A. Bayer,Appellant. |
—[*1] Butler, Fitzgerald, Fiveson & McCarthy, P.C., New York (David K. Fiveson of counsel), forrespondent.
Judgment, Supreme Court, New York County (Saralee Evans, J.), entered April 22, 2009,dissolving the parties' marriage, and, to the extent appealed from as limited by the briefs, orderingequitable distribution of the marital assets, and awarding plaintiff lifetime maintenance and attorney'sfees; and order, same court and Justice, entered November 12, 2009, denying defendant's motionseeking a modification of judgment and the imposition of sanctions, and granting plaintiff's cross motionfor attorney's fees, unanimously affirmed, without costs.
When ordering equitable distribution, the Supreme Court did not err by overlooking the taxconsequences impacting plaintiff's receipt of fifty percent of monies which defendant had earned in thefiscal quarter preceding commencement of the divorce action, as defendant failed to present evidencefrom which the court could determine the amount of such taxes (see D'Amico v D'Amico, 66 AD3d 951 [2009]; 1 Tippins, New YorkMatrimonial Law and Practice § 11:3 [2010]).
The Supreme Court providently exercised its discretion by awarding plaintiff 35% of defendant'senhanced earnings capacity. The record on appeal clearly demonstrates plaintiff's economic andnoneconomic contributions to defendant's acquisition of a medical license and his subsequent lucrativecareer, as well as the termination of her own career in order to maintain the marital household, and herabsence from the job market during marriage (see Holterman v Holterman, 3 NY3d 1, 8-9 [2004]).
We perceive no basis for disturbing the Supreme Court's award of lifetime maintenance in theamount of $10,000 per month, which properly took into account, inter alia, the marriage's duration; thedistribution of marital assets; the parties' lavish standard of living before dissolution; their incomepotentials, property and future earning capacity; and plaintiff's reasonable needs and ability to becomeself-supporting (see Hartog v Hartog, 85 NY2d 36, 51-52 [1995]; Coburn v Coburn,300 AD2d 212, 213 [2002]).
The Supreme Court properly declined defendant's request for a credit based upon tax payments heclaimed to have made with funds earned postcommencement, which he argued had lowered the parties'joint income tax arrears and the amount of tax liens encumbering the marital residence. Defendant failedto adequately establish that the purported payments were made with [*2]funds earned after commencement of the divorce action, and had beenpaid to satisfy joint tax obligations (seeHiggins v Higgins, 50 AD3d 852, 853-854 [2008]).
The record on appeal fails to support defendant's argument that the Supreme Court's judgmentawarded attorney fees to plaintiff which were in addition to an earlier pendente lite fee payment.Plaintiff's motion for fees specifically sought an amount which had been adjusted downward to accountfor the pendente lite payment.
Having reviewed the record, we are satisfied that the Supreme Court did not err by grantingplaintiff's cross-motion for attorney's fees in connection with her opposition to defendant's postjudgmentmotion for modification (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]), or bydenying defendant's request for sanctions due to alleged frivolous conduct (see Edwards vEdwards, 165 AD2d 362, 366 [1991]). Concur—Gonzalez, P.J., Mazzarelli, Moskowitz,Acosta and RomÁn, JJ.