| Levitt v Levitt |
| 2012 NY Slip Op 05393 [97 AD3d 543] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Howard Levitt, Appellant-Respondent, v Helene Levitt,Respondent-Appellant. |
—[*1]
Samuelson, Hause & Samuelson, LLP, Garden City, N.Y., (Richard L. Hause and Alisa J.Geffner of counsel), for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff former husband appeals, as limitedby his brief, from so much of a judgment of the Supreme Court, Nassau County (St. George, J.),entered December 8, 2010, as, upon a decision of the same court dated July 16, 2010, made aftera nonjury trial, awarded the defendant former wife maintenance in the sum of $7,500 per monthuntil the date of the sale of the marital residence and $15,000 per month for a period of 10 yearsthereafter, awarded the defendant retroactive maintenance from the date of the commencement ofthe action in the sum of $92,177.42, equally distributed the plaintiff's stock, stock options, andinterests in two limited partnerships, failed to grant the plaintiff a credit for payments oftemporary maintenance, directed the plaintiff to secure his maintenance obligation bymaintaining a life insurance policy with a death benefit in the amount of $1,800,000, andadjudged that the defendant would not be charged with marital waste in the sum of $73,500, andthe defendant cross-appeals from so much of the same judgment as awarded her maintenance inthe sum of only $7,500 per month until the sale of the marital residence, and denied her requestfor an award of an attorney's fee.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof awarding the defendant retroactive maintenancefrom the date of the commencement of the action in the sum of $92,177.42, (2) by deleting theprovision thereof adjudging that the defendant would not be charged with marital waste in thesum of $73,500, and substituting therefor a provision adjudging that the defendant is chargedwith marital waste in the sum of $73,500, and (3) by adding thereto a provision that the insurancepolicy which the plaintiff is required to maintain to secure his maintenance obligation may be adeclining term policy that would permit him to reduce the amount of coverage by the amount ofsupport actually paid; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings consistent herewith, including the entry of an appropriateamended judgment.
"[T]he amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its own unique facts" (Wortman [*2]v Wortman, 11 AD3d 604, 606 [2004]; see Sidhu vSidhu, 304 AD2d 816, 817 [2003]). In determining the amount and duration of an award ofmaintenance, the court "must consider the factors enumerated in Domestic Relations Law§ 236 (B) (6) (a), which include the predivorce standard of living of the parties, the incomeand property of the parties, the equitable distribution of marital property, the duration of themarriage, the present and future earning capacity of the parties, the ability of the party seekingmaintenance to be self-supporting, and the reduced or lost earning capacity of the party seekingmaintenance" (Giokas v Giokas, 73AD3d 688, 689 [2010]; see Baron vBaron, 71 AD3d 807, 809 [2010]). Here, considering the relevant factors, including thelong duration of the marriage, the extended absence of the defendant former wife from the workforce, and the parties' predivorce standard of living, the Supreme Court providently exercised itsdiscretion in awarding the defendant maintenance in the sum of $7,500 per month until the dateof the sale of the marital residence, and $15,000 per month for a period of 10 years thereafter(see Hartog v Hartog, 85 NY2d 36, 50-51 [1995]; Monroe v Monroe, 71 AD3d 647, 648 [2010]; Kriftcher v Kriftcher, 59 AD3d392, 393-394 [2009]).
Further, contrary to the contention of the plaintiff former husband, the Supreme Courtprovidently exercised its discretion in equally distributing his stock, stock options, and interestsin two limited partnerships (see Blaise v Blaise, 206 AD2d 715, 716 [1994]; Elmalehv Elmaleh, 184 AD2d 544, 546 [1992]).
However, the Supreme Court incorrectly calculated retroactive maintenance from the date ofthe commencement of the action, as it was the former husband who commenced this action. Aparty's maintenance obligation commences, and is retroactive to, the date an application formaintenance was first made (see Domestic Relations Law § 236 [B] [6] [a]; Scarpace v Scarpace, 84 AD3d1537, 1539 [2011]; Groesbeck vGroesbeck, 51 AD3d 722, 724 [2008]; Grassi v Grassi, 35 AD3d 357, 358 [2006]). In addition, the courterred by failing to credit the plaintiff for voluntary maintenance payments he made during thependency of the action (see Heiny vHeiny, 74 AD3d 1284, 1288 [2010]; Ferraro v Ferraro, 257 AD2d 598, 599[1999]). Consequently, the matter must be remitted for further proceedings, including a hearing ifwarranted, to calculate the amount of retroactive maintenance from the date of the defendant'sfirst application for maintenance, and to credit the plaintiff for any amount of temporarymaintenance already paid (see Miklos vMiklos, 39 AD3d 826, 827 [2007]; Ferraro v Ferraro, 257 AD2d at 599;Verdrager v Verdrager, 230 AD2d 786, 788-789 [1996]).
Furthermore, we agree with the plaintiff that the life insurance policy he was required tomaintain to secure his maintenance obligation may be a declining term policy that would permithim to reduce the amount of coverage by the amount of support actually paid (see Jayaram v Jayaram, 62 AD3d951, 954 [2009]; Matter ofAnonymous v Anonymous, 31 AD3d 955, 957 [2006]).
Additionally, the Supreme Court should have charged the defendant with marital waste in thesum of $73,500, representing the amount of additional income tax the plaintiff was required topay based upon the defendant's failure, as of the time of trial, to agree to file joint income taxreturns for 2009 (cf. Teich v Teich, 240 AD2d 258 [1997]; Bursztyn v Bursztyn,379 NJ Super 385, 397-398, 879 A2d 129, 136-137 [2005]).
Turning to the defendant's cross appeal, "CPLR 5515 (1) requires that a notice of appealdesignate the judgment or order, or specific part of the judgment or order, from which the appealis taken. This requirement is jurisdictional. By taking an appeal from only a part of a judgment ororder, a party waives its right to appeal from the remainder thereof" (City of Mount Vernon vMount Vernon Hous. Auth., 235 AD2d 516, 516-517 [1997] [citation omitted]; see Hatem v Hatem, 83 AD3d 663,664 [2011]). The defendant's amended notice of cross appeal specifically limits her cross appealto the portions of the judgment "which directed the plaintiff to pay the defendant $7,500 permonth in maintenance and denied the defendant's request for an award of counsel fees." As thescope of the defendant's amended notice of cross appeal is limited, her contentions that the awardof $15,000 per month of maintenance for 10 years after the marital home is sold is inadequateboth in amount and duration, and that the Supreme Court should have granted her request forexpert's fees, are not properly before this Court (see Hatem v Hatem, 83 AD3d at 664).
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Roman andSgroi, JJ., concur.
Motion by the appellant-respondent to strike point II and part of point IV of the brief of therespondent-appellant on an appeal and cross appeal from a judgment of the Supreme Court,Nassau County, entered December 8, 2010, on the ground that the issues raised in those pointsare outside the scope of the cross appeal, as limited by the amended notice of cross appeal. Bydecision and order on motion of this Court dated June 16, 2011, the motion was held in abeyanceand referred to the panel of Justices hearing the appeal and the cross appeal for determinationupon the argument or submission of the appeal and the cross appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and theargument of the appeal and the cross appeal, it is
Ordered that the motion is denied as academic in light of the determination of the appeal andthe cross appeal. Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.