| Shapiro v Shapiro |
| 2012 NY Slip Op 00163 [91 AD3d 1094] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| Neal W. Shapiro, Appellant, v Susan B. Shapiro,Respondent. |
—[*1] Friedman and Molinsek, P.C., Delmar (Michael P. Friedman of counsel), for respondent. Michele Mealy Fatone, Niskayuna, attorney for the children.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Powers, J.), entered September23, 2010 in Schenectady County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court.
The parties married in 1985 and have two sons (born in 1990 and 1992). They separated inNovember 1999. Defendant commenced a divorce action in December 1999; however, plaintiffsuccessfully contested that action, resulting in it being dismissed in 2000. They remainedseparated and, in January 2008, plaintiff brought the instant divorce action. After stipulating to aground for plaintiff to obtain a divorce, a bench trial ensued after which Supreme Court rendereda detailed written decision in August 2010. As relevant on appeal, Supreme Court directed thatthe marital portion of plaintiff's pension, calculated pursuant to the formula in Majauskas vMajauskas (61 NY2d 481, 494 [1984]), be distributed equally in periodic payments whenplaintiff receives his pension payments. The court also directed that plaintiff contribute a pro ratashare to college expenses at a State University of New York college until each child reaches theage of 22. Plaintiff appeals from the ensuing September 2010 judgment.
Plaintiff urges that the marital portion of his pension should not have been distributed equallyin light of the parties' long separation. He presented a report from his economist stating [*2]that the value of the marital portion of his pension when defendantsought a divorce in December 1999 was $29,148, whereas such value had increased to $112,613by January 2008 when plaintiff brought this action. While the value of the pension at the time ofthe earlier unsuccessful action cannot control, the circumstances surrounding the earlier actioncan be considered in the overall equitable distribution of marital property (see Mesholam v Mesholam, 11 NY3d24, 29 [2008]). Substantial deference is accorded to the trial court's determination regardingequitable distribution so long as the requisite statutory factors were considered (see Keil v Keil, 85 AD3d 1233,1234 [2011]; Altieri v Altieri, 35AD3d 1093, 1094 [2006]). Supreme Court adequately discussed the relevant factors. Amongother things, the court noted that defendant left the workforce to care for the parties' children, shemade substantial noneconomic contributions to the parties' assets during the early years of themarriage, she continued as primary caretaker for the children after the separation, she sacrificedcareer development and she now earns substantially less than plaintiff. Under suchcircumstances, Supreme Court did not abuse its discretion in awarding defendant half the maritalportion of plaintiff's pension.
Plaintiff further argues that the portion of his pension considered marital property shouldhave been distributed in a lump sum rather than future periodic payments. Either method isacceptable (see Dunne v Dunne, 9AD3d 660, 661 [2004]; Tolosky v Tolosky, 304 AD2d 876, 877 [2003]), and itgenerally rests within the discretion of the trial court as to the method best suited for theparticular facts of each case (see Mager v Mager, 267 AD2d 807, 807 [1999];Povosky v Povosky, 124 AD2d 1068, 1068-1069 [1986]). Supreme Court's determinationwas within its discretion and we find no reason to modify that determination.
Lastly, plaintiff contends that his obligation to pay college expenses should not extendbeyond the age of 21 of his children. Absent an agreement extending the obligation, a parent isnot legally obligated to pay college costs for a child that has reached the age of 21 (see Matter of Benno v Benno, 33AD3d 1143, 1145 [2006]; Matter of Cohen v Rosen, 207 AD2d 155, 158 [1995],lv denied 86 NY2d 702 [1995]; Vicinanzo v Vicinanzo, 193 AD2d 962, 965[1993]). Plaintiff acknowledged in his testimony that he had, in fact, agreed to pay part of thechildren's college education costs, there was no indication that he intended to limit his paymentsto the children's first three years in college, and proof at trial established that funds had beenpreviously set up to assist in such costs. Under these circumstances, it was not error for SupremeCourt to direct plaintiff to pay a portion of the children's college costs until they reach the age of22 (see Matter of Hammill v Mayer,66 AD3d 1196, 1198 [2009]).
Mercure, A.P.J., Peters, Rose and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.