| Carr-Harris v Carr-Harris |
| 2012 NY Slip Op 05902 [98 AD3d 548] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Natalie Carr-Harris, Appellant, v Philip Carr-Harris,Respondent. |
—[*1] Gordon A. Burrows, White Plains, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Westchester County (Tolbert, J.),entered July 19, 2011, which, upon a decision of the same court dated December 22, 2009, madeafter a nonjury trial, inter alia, failed to award her spousal maintenance and counsel fees.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff and the defendant were married for more than 30 years, during which time thedefendant worked as a church minister. The parties have four children, only one of whom was aminor at the time the trial in this divorce action was commenced. In a pendente lite order, thedefendant was directed, inter alia, to pay child support, to satisfy child support arrears in theamount of $14,400, to maintain health insurance for the plaintiff and the parties' minor child, andto reimburse the plaintiff for certain educational costs for their two daughters.
At trial, the plaintiff testified that the defendant was the main breadwinner of the family andthat, although she had a Master's degree and had worked towards two separate doctorate degrees,she worked for only three years during the course of the marriage. She also testified that theparties had borrowed more than $75,000 from her aunt, Gloria Ewsuk, although the parties didnot execute a promissory note or other documentation confirming the loan. The parties alsoborrowed $40,000 from the plaintiff's mother, Kathleen Petrochko, and received $50,000 fromthe defendant's mother, Zoya Carr-Harris (hereinafter Zoya). The plaintiff claimed that, althoughthe parties executed a promissory note for the sums received from Zoya, the principal amountwas a gift and the parties were obligated only to repay $20,000 in interest, of which $17,000 hadbeen repaid.[*2]
The plaintiff filed several motions for contempt againstthe defendant, alleging that he had violated a pendente lite order by failing to pay, among otherthings, the health insurance premiums for her and the minor child. In addition, the plaintifftestified that the defendant failed to make child support payments, failed to reimburse her forcertain college expenses for the two daughters, and failed to reimburse the plaintiff for, inter alia,out-of-pocket health care expenses and expenses she incurred in readying the marital home forsale. The plaintiff also sought an award of spousal support and counsel fees. Toward the end ofthe trial, the plaintiff admitted that she signed confessions of judgment in favor of various familymembers and friends, claiming that these individuals had loaned her money during the marriageand during the divorce proceedings and that she wished to ensure that the lenders would berepaid.
The defendant claimed that the sums received from Ewsuk were gifts and that he never hadany direct discussions with Ewsuk regarding the alleged loans. In addition, he acknowledged thatthe parties borrowed $40,000 from Petrochko, which they agreed to pay back with interest. Healso claimed that the entire sum received from Zoya was a loan, and the parties were obligated torepay the principal and accumulated interest. He acknowledged that he was obligated to pay thechild support arrears.
After trial, in December 2009, the Supreme Court found that the sums received from Ewsukwere gifts, as there was no documentary evidence to support the claim that the sums wereintended to be loans. Moreover, the Supreme Court determined that the parties owed $70,000 toPetrochko, $50,000 to Zoya, and $21,000 to the three nonminor children, reflecting the sums theparties had borrowed from their children in order to make a down payment for the purchase ofthe marital home. The Supreme Court determined that, although the defendant failed to complywith the pendente lite order, his failure to do so was not willful. Further, the Supreme Courtfound that the plaintiff was not entitled to reimbursement of the cost of repairs to the maritalresidence, as her proof on this point was insufficient.
The Supreme Court ordered the sale of the marital home and determined that the partiesshould share equally in the proceeds after payment of all loans and expenses other than the liensthat the plaintiff unilaterally placed on the home in favor of her family and friends. The SupremeCourt imputed an income of $40,000 to the plaintiff, noting that she was highly educated and hadnot worked to her potential. The Supreme Court found that the defendant, who was now workingas a public school teacher, had an income of $54,000. Based on these amounts, the court orderedthe defendant to pay $705.91 per month in child support and determined that the parties wouldshare in the cost of statutory add-ons, with the defendant being liable for 57% of such expenses.In addition, the court ordered the defendant to maintain health insurance for the minor child untilhe reached the age of 21, ordering the parties to share the cost of unreimbursed medical expenseswith the defendant paying 57% of such costs.
The defendant was also ordered to pay child support arrears from his share of the proceeds ofthe sale of the marital residence. The Supreme Court found both parties at fault for the litigiousnature of the proceedings and determined that the parties were equally situated, as both were inthe process of beginning new careers. Thus, the Supreme Court denied the plaintiff's requests forcounsel fees and spousal support. The parties were ordered to share equally in the educationalcosts for the minor child's college through his 21st birthday.
Following the Supreme Court's decision, the plaintiff filed a motion, denominated [*3]as a motion for leave to reargue, pursuant to CPLR 2221, but whichwas, in effect, a motion to set aside certain portions of the Supreme Court's December 2009decision pursuant to CPLR 4404 (b) (seeEhrman v Ehrman, 67 AD3d 955, 956 [2009]). The plaintiff alleged, inter alia, that shewas entitled to an award of counsel fees and spousal support, that the Supreme Court improperlycalculated the amount due to Petrochko, that the amounts received from Ewsuk were loans, andthe principal amount received from Zoya was a gift. She also argued that the Supreme Court hadfailed to address her claims for reimbursement of the cost of repairing the marital home and forother costs which she allegedly incurred. The plaintiff also claimed that the court should havespecified the amounts due to be repaid to the nonminor children and Rebecca and the amount duein child support arrears.
The Supreme Court denied the motion. It subsequently entered judgment pursuant to itsDecember 2009 decision. The plaintiff appeals.
The amount and duration of spousal maintenance is committed to the sound discretion of thetrial court, and each case is to be decided on its own unique facts (see Wortman v Wortman, 11 AD3d604, 606 [2004]). The following factors should be considered in awarding spousalmaintenance: the standard of living of the parties during the marriage, the income and property ofthe parties, the distribution of marital property, the duration of the marriage, the health of theparties, the present and future earning capacities 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 (id.; see Unterreiner v Unterreiner, 288 AD2d 463[2001]).
A court need not rely on a party's own account of his or her finances (see DeSouza-Brown v Brown, 71AD3d 946, 947 [2010]). Rather, the court may impute income to a party based on the party'spast income or demonstrated earning potential (id.). A court may base its determinationon the income a parent is capable of earning by honest efforts, given his or her education andopportunities (see Matter of Bibicoff vOrfanakis, 48 AD3d 680, 681 [2008]).
Here, the Supreme Court appropriately exercised its discretion in denying spousalmaintenance to the plaintiff. Indeed, the plaintiff is highly educated and is similarly situated tothe defendant in terms of age, educational background, and future potential to work. Like thedefendant, she is in the process of beginning a new career and, according to her own testimony,she should be able to earn approximately $40,000 per year. As such, the Supreme Court'simputation of income to her was appropriate, and the record supports the court's finding that theplaintiff was not entitled to spousal maintenance.
Similarly, the Supreme Court properly denied the plaintiff an award of counsel fees. Anaward of counsel fees lies in the sound discretion of the trial court, after that court has taken intoaccount the equities and circumstances of the particular case including the respective financialcircumstances of each party (see Domestic Relations Law § 237 [a]; Gagstetterv Gagstetter, 283 AD2d 393, 395 [2001]). The record reveals that, as the Supreme Courtnoted, the parties were both responsible for the litigious nature of the case, which involved, interalia, a trial that lasted over the course of 21 months. Accordingly, we see no reason to disturb theSupreme Court's finding with respect to counsel fees.
There is no merit to the plaintiff's assertions that the Supreme Court improperly determinedthe total amount due to Petrochko and erred in finding that the sums received from Ewsuk weregifts while the sums received from Zoya were loans. Trial courts are vested with broad [*4]discretion in making equitable distribution of marital property (see DeGroat v DeGroat, 84 AD3d1012, 1012 [2011]). In reviewing a determination as to equitable distribution, the trial court'sassessment of the credibility of witnesses is afforded great weight on appeal (see Jones-Bertrand v Bertrand, 59AD3d 391, 391 [2009]). Here, each of the Supreme Court's findings is supported by therecord. First, as to the Petrochko loan, the parties agreed that, at commencement of this action,Petrochko was owed approximately $70,000, which reflected the principal plus interest.Moreover, the plaintiff provided no documentary evidence to support her contention that Ewsukloaned money to the defendants, and Ewsuk acknowledged that she never spoke to the defendantabout the money she gave to the plaintiff, did not discuss any obligation to repay the sums withhim, and did not demand repayment of the alleged loans at any point. As such, the SupremeCourt properly determined that the funds received from Ewsuk were gifts. Finally, as to the fundsreceived from Zoya, the parties agreed that they signed a promissory note to repay Zoya, althoughthe plaintiff contended that the promise to repay concerned the interest only. The defendant,however, claimed that the promissory note obligated the parties to repay the principal balance.The Supreme Court was free to credit the defendant's testimony, and we see no reason to disturbthe court's findings.
The Supreme Court properly denied the plaintiff's request for reimbursement of expenses thatshe allegedly incurred in making repairs to the marital home because the plaintiff failed tosufficiently prove that claim. Moreover, contrary to the plaintiff's assertions, the Supreme Courtaddressed her contempt motions, properly finding that the defendant's violations of the pendentelite order were not willful. The Supreme Court properly found that the children were owed a totalsum of $21,000, a fact about which the parties were in substantial agreement.
Contrary to the plaintiff's contention, the Supreme Court did not fail to provide for thedisposition of disputed marital property (cf. Mulcahy v Mulcahy, 255 AD2d 565 [1998];Coccetti v Coccetti, 236 AD2d 506, 506 [1997]). Moreover, the plaintiff's contention thatthe Supreme Court failed to consider her claims for reimbursement for certain expenses when itdetermined the distribution of the marital property is without merit (see Scher v Scher, 91 AD3d 842,847 [2012]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dickerson, Hall andMiller, JJ., concur.