| Harrington v Harrington |
| 2012 NY Slip Op 02355 [93 AD3d 1092] |
| March 29, 2012 |
| Appellate Division, Third Department |
| Kevin S. Harrington, Appellant, v Jeanne O. Harrington,Respondent. |
—[*1] Susan J. Civic, Saratoga Springs, for respondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Pritzker, J.), entered October15, 2010 in Washington County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1991and have two children (born in 1989 and 1991). The husband is a self-employed contractor who,throughout the marriage, operated his own construction business while the wife, who ispermanently disabled, devoted herself to the care of the parties' children and was not otherwiseemployed. The husband commenced this action in December 2008 and, after a trial, SupremeCourt granted the wife's counterclaim for divorce, distributed certain marital assets, and directedthe husband to pay maintenance for 15 years and approximately $10,000 towards the wife'scounsel fees. The husband now appeals.
The husband challenges Supreme Court's decision to impute an additional $30,000 to theincome he claims to earn each year. Initially, Supreme Court is not bound by representationsmade by a party in a matrimonial action regarding his or her annual income and may increase thatfigure where the record establishes, as it does here, that a party routinely paid "personal expensesfrom business accounts" and had access to other income to offset such expenses (Bean v Bean, 53 AD3d 718, 722[2008]). In support of his claim regarding his annual income, the husband submitted tax returnsfor a four-year period beginning in 2005 in which he claimed annual adjusted gross incomebetween $13,802 and $33,689. However, Supreme Court found, and the record established, thatdespite the husband's claims regarding his limited income, he paid, in [*2]addition to other expenses, $559 per month in child support and$2,000 each month to his girlfriend to live at her residence and for bookkeeping services sheprovided his contracting business. Also, the husband admitted using the business checkingaccount for personal expenses and paying for numerous vacations he had taken with hisgirlfriend, plus $950 a month in rent for a residence in which he did not reside. This evidenceprovides ample support for Supreme Court's determination that additional income should beimputed to the husband to reflect an annual income of $60,000 per year (see Armstrong v Armstrong, 72 AD3d1409, 1414 [2010]; McAuliffe vMcAuliffe, 70 AD3d 1129, 1131 [2010]).
We also note that, contrary to the husband's contention, Supreme Court is not bound by adetermination previously rendered by Family Court in a child support proceeding that his annualincome was $30,000. Here, evidence was presented that the husband's claims in this regard werenot accurate or credible, and provided a rational basis for Supreme Court's decision placing hisannual income at $60,000. In addition, the wife did not waive her right to challenge the husband'sclaims regarding his annual income simply because she had previously signed joint tax returnsthat listed his annual income as $30,000 (see generally Mahoney-Buntzman v Buntzman, 12 NY3d 415[2009]).
As for the duration of the husband's obligation to pay maintenance, Supreme Courtconsidered the statutory factors (see Domestic Relations Law § 236 [B] [6] [a];Hartog v Hartog, 85 NY2d 36, 50 [1995]; St. Louis v St. Louis, 86 AD3d 706, 709 [2011]; Keil v Keil, 85 AD3d 1233, 1238[2011]), and specifically took into account the ages of the parties, their employment history, thestandard of living they enjoyed during the marriage, the length of the marriage, and the fact thatthe wife has been permanently disabled since 1995.[FN1]Inasmuch as the court's decision was based on relevant factors, we do not find that it was anabuse of discretion (see Roberto vRoberto, 90 AD3d 1373, 1376 [2011]; Keil v Keil, 85 AD3d at 1238).
As for its award of counsel fees, Supreme Court conducted a hearing at which the wife'scounsel testified to the legal services she provided during the course of these proceedings. Giventhe wife's need for these legal services, and the parties' respective financial conditions, the courtdid not abuse its discretion by directing the husband to contribute $9,816 to the payment of thelegal expenses that the wife has incurred in these proceedings[FN2](see O'Connor v O'Connor, 91AD3d 1107 [2012]; Laura WW. vPeter WW., 50 AD3d 1292, 1292 [2008]). Further, while the wife's counsel did not, asrequired, bill the wife every 60 days for her services, she did provide her with a copy of a retaineragreement, as well as a statement of client's rights and responsibilities pursuant to 22 NYCRR1400.3. More importantly, counsel's failure to bill the wife for these services every 60 days is nota ground upon which the husband can rely to avoid paying a share of her legal expenses (seeWebbe v Webbe, 267 AD2d 764, 765 [1999], lv denied 95 NY2d 753 [2000]; see also Petosa v Petosa, 56 AD3d1296 [2008]; Johnner v Mims, 48 [*3]AD3d 1104,1105 [2008]).[FN3]
The husband's remaining arguments challenging Supreme Court's decision regarding thedistribution of marital assets have no merit. The principal assets in question were the maritalresidence, which, when this action was commenced, had little if any equity, and a vacant lot thatthe court directed be sold and the proceeds divided equally between the parties. Finally, thereference made by the court to custody in its final decision merely reflected the terms of theparties' stipulation and is of no moment given that each child has now reached the age of 21.
Peters, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: In its award, Supreme Courttook note of the husband's child support obligation and increased the amount of maintenance hewas to pay the wife once that obligation ended. At that time, the husband was obligated to pay$250 per week until August 8, 2035, unless he had not retired at that time.
Footnote 2: The current action wascommenced prior to the recent amendment to Domestic Relations Law § 237 (a)(see L 2010, ch 329, § 1).
Footnote 3: As for the wife's application thatthe amount awarded for counsel fees be increased, we note that she has not appealed any part ofSupreme Court's judgment (see Hecht v City of New York, 60 NY2d 57, 61 [1983]; Matter of Sanders v Slater, 53 AD3d716, 717 n [2008]; Cassadei vCounty of Schenectady, 50 AD3d 1439, 1439 n 1 [2008]).