| Chaudry v Chaudry |
| 2012 NY Slip Op 03798 [95 AD3d 1058] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Beela Chaudry, Respondent-Appellant, v Masud Chaudry,Appellant-Respondent. |
—[*1] Louis S. Sroka, Jericho, N.Y., for respondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Nassau County (Shifrin, Ct. Atty.Ref.), entered October 26, 2010, which, upon a decision of the same court dated June 2, 2010,made after a nonjury trial, inter alia, awarded the plaintiff nontaxable spousal maintenance in thesum of $1,583.33 per month for a duration of four years commencing June 2010, and the sum of$1,235 per month for a duration of 10 years commencing June 2014, directed that the defendantshall not take such maintenance as a tax deduction, directed the defendant to pay the collegetuition, fees, and book costs of the parties' unemancipated child, and awarded the plaintiff creditsin the sum of $40,127.52, and the plaintiff cross-appeals from so much of the same judgment asfailed to award her an attorney's fee.
Ordered that the judgment is modified, on the facts, and in the exercise of discretion, (1) bydeleting the provision thereof directing that spousal maintenance shall be nontaxable to theplaintiff and that the defendant shall not take such maintenance as a tax deduction, andsubstituting therefor a provision directing that spousal maintenance shall be taxable to theplaintiff and deductible by the defendant, and (2) by adding a provision thereto awarding theplaintiff an attorney's fee in the sum of $47,905; as so modified, the judgment is affirmed insofaras appealed from, with costs to the plaintiff.
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]). "Whenevaluating whether a court providently exercised its discretion in awarding maintenance, thefactors to be considered are whether the award encourages economic independence, the presentand future earning capacity of the parties, the reduced or lost lifetime earning capacity of theparty seeking maintenance, the duration of the marriage, whether the amount and duration of theaward is appropriate in light of the pre-separation standard of living, the reasonable needs of therecipient spouse, the income and property of the parties, the distribution of the marital property,and the health of the parties" (Litvak vLitvak, 63 AD3d 691, 692 [2009]; see Domestic Relations Law § 236 [B][6] [a]; Hartog v Hartog, 85 NY2d 36, 51-52 [1995]).
Under the circumstances of this case, including the present and future earning [*2]capacity of the parties, the reduced or lost lifetime earning capacityof the plaintiff, and the marital standard of living, the Supreme Court providently exercised itsdiscretion in its determination of the amount and duration of maintenance (see Monroe v Monroe, 71 AD3d647 [2010]; Geller v Geller, 69AD3d 563 [2010]; Litvak vLitvak, 63 AD3d 691 [2009]; Appel v Appel, 54 AD3d 786 [2008]; Wortman v Wortman, 11 AD3d604 [2004]). However, the maintenance awarded should be taxable to the plaintiff anddeductible by the defendant (see Markopoulos v Markopoulos, 274 AD2d 457, 459[2000]).
The Supreme Court improvidently exercised its discretion in failing to award the plaintiff anattorney's fee. An award of an attorney's fee pursuant to Domestic Relations Law § 237 (a)is a matter within the sound discretion of the trial court, and the issue "is controlled by theequities and circumstances of each particular case" (Morrissey v Morrissey, 259 AD2d472, 473 [1999]; see Prichep vPrichep, 52 AD3d 61 [2008]; Timpone v Timpone, 28 AD3d 646 [2006]). In determiningwhether to award fees, the court should "review the financial circumstances of both partiestogether with all the other circumstances of the case, which may include the relative merit of theparties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Here, inlight of, among other things, the significant disparity in the parties' incomes and the amount oftime spent at trial tracing the funds that the defendant admittedly withdrew from marital accountswithout the plaintiff's knowledge, an award of one half of the plaintiff's counsel fees wasappropriate (see Aloi v Simoni, 82AD3d 683 [2011]; Raynor vRaynor, 68 AD3d 835 [2009]; Peritore v Peritore, 50 AD3d 874 [2008]). Accordingly, theplaintiff is entitled to an attorney's fee in the sum of $47,905.
The defendant's remaining contentions are without merit. Florio, J.P., Lott, Sgroi and Miller,JJ., concur.