| Felix v Felix |
| 2011 NY Slip Op 06821 [87 AD3d 1106] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Jacqueline Felix, Respondent, v Robert Felix,Appellant. |
—[*1] Arnold E. DiJoseph, P.C., New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Richmond County (deGrimston, Ct. Atty.Ref.), dated December 11, 2008, as, after a nonjury trial, awarded the plaintiff a portion of hisretirement benefits, directed him to maintain a life insurance policy in the amount of $300,000with the plaintiff as a beneficiary as security for her interest in his retirement benefits, directedhim to contribute towards the college costs of the parties' two youngest children, directed him tocontribute towards the parochial school education of the parties' youngest child, and awarded theplaintiff maintenance in the sum of $1,200 per month for a period of eight years.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provisions thereof directing the defendant to contribute towards the college costs ofthe parties' two youngest children, and (2) by deleting the provision thereof awarding the plaintiffmaintenance in the sum of $1,200 per month for a period of eight years, and substituting therefora provision awarding the plaintiff maintenance in the sum of $1,200 for a period of six years; asso modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
Contrary to the defendant's contentions, the Supreme Court did not err in awarding a portionof his retirement benefits to the plaintiff (see Majauskas v Majauskas, 61 NY2d 481[1984]). The plaintiff was not seeking an immediate payment of her share of the retirementbenefits, so a valuation of them as a lump sum was unnecessary (see Koeth v Koeth, 309AD2d 786 [2003]). Sufficient evidence was presented at trial to support the Supreme Court'sdetermination that the plaintiff was entitled to 50% of the marital share of those benefits. Inaddition, the Supreme Court providently exercised its discretion in directing the defendant tomaintain a life insurance policy in the amount of $300,000 as security for the plaintiff's interest inhis retirement benefits (see Domestic Relations Law § 236 [B] [8] [a]).
The amount and duration of maintenance is addressed to the sound discretion of the trialcourt, and is to be determined on a case-by-case basis (see Sirgant v Sirgant, 43 AD3d 1034, 1035 [2007]). " 'Indetermining the appropriate amount and duration of maintenance, the court is required toconsider, among other factors, the standard of living of the parties during the marriage and the[*2]present and future earning capacity of both parties' " (Wasserman v Wasserman, 66 AD3d880, 883 [2009] [some internal quotation marks omitted], quoting DiBlasi v DiBlasi, 48 AD3d 403,404 [2008]; see Domestic Relations Law § 236 [B] [6] [a]). "The overridingpurpose of a maintenance award is to give the spouse economic independence, and it should beawarded for a duration that would provide the recipient with enough time to becomeself-supporting" (DiBlasi v DiBlasi, 48 AD3d at 404 [internal quotation marks omitted];see Haines v Haines, 44 AD3d901, 902 [2007]; Sirgant v Sirgant, 43 AD3d at 1035; Scarlett v Scarlett, 35 AD3d 710[2006]). Here, the Supreme Court providently exercised its discretion in awarding the plaintiffmaintenance in the sum of $1,200 per month. Nevertheless, we find that, under all thecircumstances, the duration of the defendant's maintenance obligation should be reduced fromeight years to six years.
The Supreme Court providently exercised its discretion in directing the defendant tocontribute towards the cost of parochial school tuition for the parties' youngest child (see Liles v Liles, 56 AD3d 531,532 [2008]; Marin v Marin, 283 AD2d 615 [2001]). Finally, it was premature for theSupreme Court to direct the defendant to contribute towards the college costs of the two youngestchildren because, at the time of trial, those two children were less than 16 and 13 years old, andno evidence was adduced concerning their academic ability, interest in attending college, orchoice of college (see Bibas vBibas, 58 AD3d 586, 588 [2009]; Matter of Halpern v Kuruvilla, 280 AD2d670, 670-671 [2001]; Tan v Tan, 260 AD2d 543 [1999]; Granade-Bastuck vBastuck, 249 AD2d 444, 446 [1998]). Mastro, J.P., Balkin, Chambers and Lott, JJ., concur.