| Duffy v Duffy |
| 2011 NY Slip Op 04411 [84 AD3d 1151] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Natsuko Duffy, Respondent, v Thomas Duffy,Appellant. |
—[*1] Steinberg, Fineo, Berger & Fischoff, P.C., Woodbury, N.Y. (Dana J. Finkelstein and JessicaA. Gould of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from so much of ajudgment of the Supreme Court, Nassau County (O'Connell, J.H.O.), entered February 3, 2010,as, upon a decision of the same court dated June 18, 2009, made after a nonjury trial, (1) awardedthe plaintiff child support in the sum of $38,000 per year until the parties' oldest child attains theage of 18, graduates from high school, or ceases to play competitive hockey, whichever isearliest, at which time the child support award shall be reduced to $36,500 per year until theparties' youngest child attains the age of 18, graduates from high school, or ceases to playcompetitive hockey, whichever is earliest, (2) awarded the plaintiff maintenance in the sum of$400 per week for a period of five years, (3) directed the payment of the proceeds of a bankaccount in the sum of $4,375 to the plaintiff as part of the equitable distribution of maritalproperty, and (4) awarded the plaintiff the sum of $35,000 as an attorney's fee.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"A court need not rely upon a party's own account of his finances, but may impute incomebased upon the party's past income or demonstrated future potential earnings" (Steinberg vSteinberg, 59 AD3d 702, 705 [2009]). "The court may impute income to a party based on hisor her employment history, future earning capacity, educational background, or money receivedfrom friends and relatives" (Wesche v Wesche, 77 AD3d 921, 923 [2010]). "Where aparty's account is not believable, the court may impute a true or potential income higher thanalleged" (id., citing Lilikakis v Lilikakis, 308 AD2d 435, 436 [2003]). Here, theSupreme Court providently exercised its discretion in imputing income to the defendant basedon, among other things, his Internal Revenue Service form W-2 earnings statement.
"The amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court and every case must be determined on its unique facts" (Monroe v Monroe,71 AD3d 647, 648 [2010] [internal quotation marks omitted]). Considering the relevant factors,including the income of the parties, the length of the marriage, the present and future earningcapacity of the parties, and the ability of the party seeking maintenance to becomeself-supporting, the Supreme Court providently exercised its discretion in awarding the plaintiffweekly maintenance in the sum of $400 for a period of five years (see DomesticRelations Law § 236 [B] [6] [a]; Schwartz v Schwartz, 67 AD3d 989, 990 [2009];Steinberg v Steinberg, 59 AD3d at 705).[*2]
"The trial court is vested with broad discretion in makingan equitable distribution of marital property . . . and unless it can be shown that thecourt improvidently exercised that discretion, its determination should not be disturbed"(Michaelessi v Michaelessi, 59 AD3d 688, 689 [2009] [internal quotation marksomitted]; see Domestic Relations Law § 236 [B] [5] [e]). "Equitable distributiondoes not necessarily mean equal distribution" (Michaelessi v Michaelessi, 59 AD3d at689; see McLoughlin v McLoughlin, 74 AD3d 911, 914 [2010]). Here, the parties weremarried for more than 14 years, during which time the plaintiff contributed directly and indirectlyto the marriage as a spouse and mother (see Fields v Fields, 15 NY3d 158, 162 [2010];Hartog v Hartog, 85 NY2d 36, 47 [1995]). Therefore, the Supreme Court providentlyexercised its discretion in awarding the plaintiff $4,375 from the parties' bank account as part ofthe equitable distribution of marital property (see Domestic Relations Law § 236[B] [5] [e]).
"The determination of what constitutes reasonable counsel fees is within the court'sdiscretion" (Kaplan v Kaplan, 51 AD3d 635, 637 [2008], citing DeCabrera vCabrera-Rosete, 70 NY2d 879, 881 [1987]). "In its determination of an attorney's feeapplication, the trial court must consider the relative financial circumstances of the parties, therelative merit of their positions, and the tactics of a party in unnecessarily prolonging thelitigation" (Baron v Baron, 71 AD3d 807, 810 [2010]). Here, the Supreme Court properlyconsidered the relevant circumstances, and its determination to award the mother an attorney'sfee should not be disturbed.
The defendant's remaining contentions are waived (see Matter of Jaleel H., 36 AD3d808, 809 [2007]), abandoned (see Praeger v Praeger, 162 AD2d 671, 672 [1990]), orwithout merit. Mastro, J.P., Hall, Lott and Cohen, JJ., concur.