| Charap v Willett |
| 2011 NY Slip Op 04189 [84 AD3d 1000] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Ross J. Charap, Respondent, v Beverly A. Willett,Appellant. |
—[*1] Ross J. Charap, New York, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant former wife appeals, as limitedby her brief, from stated portions of a judgment of the Supreme Court, Kings County(Morgenstern, J.), dated March 30, 2009, which, upon a decision of the same court datedFebruary 25, 2009, made after a nonjury trial, inter alia, only awarded her the sum of $5,000 permonth in durational maintenance for two years, only awarded her the sum of $3,859.34 permonth in child support, and distributed the marital assets.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The parties were married in 1982. There are two children of the marriage, born in 1990 and1995, respectively. The former husband left the marital residence in December 2002. On or aboutMarch 17, 2003, the former husband commenced this action for a divorce and ancillary relief.After a nonjury trial on grounds for divorce, the Supreme Court determined that the formerhusband failed to prove his alleged grounds for divorce.
On May 7, 2007, the parties entered into a "Stipulation as to Custody, Decision-Making andParental Access," and the former wife filed an amended answer containing a counterclaim fordivorce on the ground of cruel and inhuman treatment. The former husband waived his reply and,while neither admitting or denying the allegations, consented to the former wife obtaining adivorce on that ground. After an inquest, the divorce was granted, but entry of the divorcejudgment was held in abeyance pending the resolution of ancillary issues. The matter wastransferred for trial on the remaining financial issues.
After a nonjury trial, the Supreme Court, inter alia, distributed the marital estate and directedthe former husband to pay the former wife durational maintenance in the sum of $5,000 permonth for two years. The court also imputed income to the former wife for child supportpurposes, prorated the parties' obligations, and directed the former husband to pay the formerwife the sum of $3,859.34 per month in child support, plus direct payments of the children'scollege expenses and other add-ons. The former wife appeals from stated portions of thejudgment of divorce. We find her contentions without merit, and affirm the judgment insofar asappealed from.[*2]
Contrary to the former wife's contention, she was notdeprived of a fair trial. The Supreme Court has broad discretion to limit repetitious, collateral, orclearly irrelevant testimony and cross-examination (see People v Martin, 42 NY2d 882,883 [1977]; Matter of MetropolitanTransp. Auth. [Fulton St. Tr. Ctr. Project Phase 2], 81 AD3d 434 [2011], lvdenied 16 NY3d 713 [2011]; People v Stevens, 45 AD3d 610,611 [2007]). The former wife's allegations of bias are without merit (see Allison v Allison, 60 AD3d711 [2009]; Pourooshasb vPourooshasb, 4 AD3d 404, 405 [2004]).
" ' "[T]he amount and duration of maintenance is a matter committed to the sound discretionof the trial court, and every case must be determined on its own unique facts" ' " (DiBlasi v DiBlasi, 48 AD3d 403,404 [2008], quoting Wortman vWortman, 11 AD3d 604, 606 [2004]). "Maintenance is designed to give the spouseeconomic independence and should continue only as long as is required to render the recipientself-supporting" (Schenfeld v Schenfeld, 289 AD2d 219, 220 [2001] [citations omitted];Palestra v Palestra, 300 AD2d 288, 289 [2002]). " 'In determining the appropriate amountand duration of maintenance, the court is required to consider, among other factors, the standardof living of the parties during the marriage and the present and future earning capacity of bothparties (see Domestic Relations Law § 236 [B] [6] [a] [citations omitted])' "(DiBlasi v DiBlasi, 48 AD3d at 404, quoting Haines v Haines, 44 AD3d 901, 902 [2007]).
The Supreme Court properly rejected the former wife's request for lifetime maintenance.First, a purported agreement dated March 19, 2001, which provided, inter alia, that the formerwife would not be required to work outside the family home during a divorce, is ambiguous as toduration and, in any event, is not enforceable (see Domestic Relations Law § 236[B] [3]). Moreover, the former wife is an attorney who practiced law for almost 20 years and iscapable of earning a significant salary. Given her skills, experience, and the children's matureages, the Supreme Court appropriately limited maintenance to the sum of $5,000 per month for aperiod of two years (see Junkins v Junkins, 238 AD2d 480 [1997]; Timperio vTimperio, 232 AD2d 857, 860 [1996]; Miller v Miller, 201 AD2d 542, 544 [1994],amended on other grounds 208 AD2d 812 [1994]).
The Supreme Court providently imputed $200,000 per year in income to the former wife forchild support purposes. " 'Child support is determined by the parents' ability to provide for theirchild rather than their current economic situation' " (Kalish v Kalish, 289 AD2d 202, 202[2001], quoting Matter of Zwick v Kulhan, 226 AD2d 734, 734 [1996]). "In determininga party's child support obligation, the court 'need not rely upon the party's own account of his orher finances, but may impute income based upon the party's past income or demonstrated earningpotential' " (Matter of Strella vFerro, 42 AD3d 544, 546 [2007], quoting Matter of Westenberger v Westenberger, 23 AD3d 571, 571[2005]). Courts are afforded considerable discretion in determining whether to impute income toa parent (see Matter of Thompson vPerez, 42 AD3d 503, 504 [2007]). Here, given the former wife's education, experience,and salary history, the imputed sum was supported by the record. Further, the court properlyconsidered the statutory factors in capping the combined parental income at $300,000 for childsupport purposes, and there is no basis in this record for disturbing its determination (seeDomestic Relations Law § 240 [1-b] [c] [3]; [f]; Cerami v Cerami, 44 AD3d 815, 816 [2007]).
We find that the Supreme Court properly exercised its broad discretion in determiningequitable distribution, and there is no basis in this record for disturbing its determination (see Davis v O'Brien, 79 AD3d695, 696 [2010]; Schwartz vSchwartz, 67 AD3d 989, 990 [2009]). The Supreme Court providently awarded theformer wife only 10% of the value of the former husband's law practice. The former wife madeonly indirect contributions to the former husband's career and was herself employed as anattorney for most of the marriage (seeGiokas v Giokas, 73 AD3d 688, 690 [2010]; cf. Ciampa v Ciampa, 47 AD3d 745, 746 [2008]).
The Supreme Court providently exercised its discretion in denying the former wife'sapplication for counsel fees, as she received a large distributive award and has a substantialearning capacity (see Dempster v Dempster, 236 AD2d 582 [1997]; Rodgers vRodgers, 98 AD2d 386, 393 [1983]).
The security provided was sufficient (see Domestic Relations Law § 236 [B][8] [a]).[*3]
The former wife's remaining contentions are withoutmerit. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.