| Morales v Inzerra |
| 2012 NY Slip Op 05806 [98 AD3d 484] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Juan Morales, Appellant, v Josephine Inzerra,Respondent. |
—[*1] McGuire Condon, P.C., Huntington, N.Y. (Karen D. McGuire of counsel), forrespondent.
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, Suffolk County (Garguilo, J.),entered March 21, 2011, as, upon a decision of the same court dated May 7, 2010, made after anonjury trial, (a) determined that the defendant's interest in certain real property was separateproperty not subject to equitable distribution, (b) awarded the defendant maintenance in the sumof $325 per week for a period of 10 years, and (c) awarded the defendant an attorney's fee in thesum of $10,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff former husband's contention, certain real property located in NorthLindenhurst was not converted to marital property through his contributions and efforts towardits renovation (see Embury vEmbury, 49 AD3d 802, 804 [2008]; cf. Matwijczuk v Matwijczuk, 261 AD2d784, 785-786 [1999]). Moreover, "in order for appreciation in the value of separate property to bedeemed marital property subject to equitable distribution, the nontitled spouse must demonstratethe manner in which his [or her] contributions resulted in the increase in value and the amount ofthe increase which was attributable to his [or her] efforts" (Embury v Embury, 49 AD3dat 804 [citations and internal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18[1986]; Imhof v Imhof, 259 AD2d 666, 667 [1999]). Here, the plaintiff failed to sustainhis burden, as he failed to set forth proof that the property actually increased in value and, in anyevent, he failed to demonstrate the manner in which his contributions resulted in any allegedappreciation (see Embury v Embury, 49 AD3d at 804; Rubin v Rubin, 309 AD2d846, 847 [2003]; cf. Imhof v Imhof, 259 AD2d at 667).
The "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 v Wortman, 11 AD3d604, 606 [2004]; see Farag vFarag, 4 AD3d 502 [2004]). The factors to be considered in awarding maintenanceinclude "the standard of living of the parties during the marriage, the income and property of theparties, the distribution of marital property, the duration of the marriage, the health of the parties,the present and future earning capacity of both parties, the ability of the party seekingmaintenance to become self-supporting, and the reduced or lost lifetime earning capacity of theparty seeking maintenance" (Kret v Kret, 222 AD2d 412, 413 [1995]; see Farag vFarag, 4 AD3d at 503; Wilson v Wilson, 308 AD2d 583 [2003]; O'Sullivan vO'Sullivan, 282 AD2d 586 [2001]).[*2]
Here, the Supreme Court providently exercised itsdiscretion in requiring the plaintiff to pay the defendant former wife maintenance in the sum of$325 per week for a period of 10 years. The Supreme Court found that the defendant wasdisabled as a result of multiple sclerosis. She lived in an assisted-living facility and SocialSecurity disability benefits were her only independent source of income. Based on this record thecourt properly determined that the defendant was unable to support herself, and would not likelybecome self-supporting in the future (cf. Kret v Kret, 222 AD2d at 412). Contrary to theplaintiff's contention, the court properly imputed $52,000 in annual income to him based on hispre-retirement earnings and experience (see DeSouza-Brown v Brown, 71 AD3d 946, 947 [2010]; Chamberlain v Chamberlain, 24 AD3d589, 594 [2005]; Viscardi v Viscardi, 303 AD2d 401 [2003]). Although the plaintiffclaimed that he retired because of a purported disability, he failed to offer medical evidence ofhis disability and his employment was uninterrupted in the years leading up to thecommencement of this action. Moreover, the court found that he retired shortly after he wasordered to pay pendente lite maintenance to the defendant. The trial court had the opportunity toview the demeanor of the witnesses at the trial, and was in the best position to gauge theircredibility. Its resolution of credibility issues is entitled to great deference on appeal (see Levine v Levine, 37 AD3d550, 551-552 [2007]; Lieberman vLieberman, 21 AD3d 1004, 1005 [2005]).
The court properly awarded the defendant an attorney's fee in the sum of $10,000, based onthe relative financial circumstances of the parties, the relative merits of their positions at trial,and its finding that the plaintiff's actions prolonged the litigation (see Domestic RelationsLaw § 237 [a]; Quinn vQuinn, 73 AD3d 887 [2010]; DeSouza-Brown v Brown, 71 AD3d at 947).Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.