| Nicodemus v Nicodemus |
| 2012 NY Slip Op 05960 [98 AD3d 605] |
| August 15, 2012 |
| Appellate Division, Second Department |
| Frank R. Nicodemus, Appellant, v Elsa A. Nicodemus,Respondent. |
—[*1] Klein Varble & Grego, P.C., Poughkeepsie, N.Y. (Steven H. Klein of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Dutchess County (Pagones, J.), datedJune 24, 2011, which, after a nonjury trial, inter alia, (1) denied him maintenance, and allegedarrears of pendente lite maintenance, (2) determined that real property located in Cold Spring,New York, was the defendant's separate property, (3) limited his distributive award relating toreal property located on Diddell Road in Wappingers Falls, New York, to $75,000, (4) awardedhim only 30% as his equitable share of the marital property consisting of 254 Titusville Road,Wappingers Falls, New York, 1090 Route 376, Wappingers Falls, New York, and F.E.N.Enterprises of New York, Inc./F.E.N. Auto Works, Inc., (5) declared that a receiver appointed tosell certain assets would receive a 5% commission pursuant to CPLR 8004, (6) denied hisapplication for an award of an attorney's fee and expert witness fees, (7) failed to award himcertain personal property in kind, including a 1958 Cadillac Seville and a 1955 CadillacEldorado, and (8) failed to adjudicate him an innocent spouse with respect to corporate taxes ofthe parties' business and personal taxes.
Ordered that the judgment is modified, on the facts, and in the exercise of discretion, bydeleting the provisions thereof awarding the plaintiff only 30% as his equitable share of themarital property consisting of 254 Titusville Road, Wappingers Falls, New York, 1090 Route376, Wappingers Falls, New York, and F.E.N. Enterprises of New York, Inc./F.E.N. AutoWorks, Inc., and substituting therefor provisions awarding the plaintiff 50% as his equitableshare of that marital property; as so modified, the judgment is affirmed insofar as appealed from,without costs or disbursements.
In a matrimonial action the court "may order maintenance in such amount as justice requires"(Domestic Relations Law § 236 [B] [6] [a]). In determining the amount and duration of anaward of maintenance, the court "must consider the factors enumerated in Domestic RelationsLaw § 236 (B) (6) (a), which include the predivorce standard of living of the parties, theincome and property of the parties, the equitable distribution of marital property, the duration ofthe marriage, the present and future earning capacity of the parties, the ability of the partyseeking maintenance to be self-supporting, and the reduced or lost earning capacity of the partyseeking maintenance" (Giokas vGiokas, 73 AD3d 688, 689 [2010]; see Baron v Baron, 71 AD3d 807, 809 [2010]). Here, uponconsideration of the relevant factors, the Supreme Court providently exercised its discretion in[*2]declining to award the plaintiff maintenance (see Reddan v Reddan, 92 AD3d665 [2012]; Dellafiora vDellafiora, 38 AD3d 825, 826 [2007]).
However, the Supreme Court improvidently exercised its discretion in awarding the plaintiffonly 30% as his equitable share of the marital property consisting of 254 Titusville Road,Wappingers Falls, New York, 1090 Route 376, Wappingers Falls, New York, and F.E.N.Enterprises of New York, Inc./F.E.N. Auto Works, Inc. "Equitable distribution does notnecessarily mean equal distribution" (Michaelessi v Michaelessi, 59 AD3d 688, 689 [2009]).Nevertheless, taking into consideration the circumstances of the case, including the long durationof the marriage, the contribution of each spouse to the marriage and to the parties' automobilerestoration business, and the probable future financial circumstances of each party, we find thatan equal distribution of that marital property would be the more equitable disposition (seeDomestic Relations Law § 236 [B] [5] [c], [d]; Williams v Williams, 245AD2d 49, 49 [1997]; Miller v Miller, 128 AD2d 844, 845-846 [1987]).
"The award of reasonable counsel fees is a matter within the sound discretion of the trialcourt. The issue of counsel fees is controlled by the equities and circumstances of each particularcase, and the court must consider the relative merits of the parties' positions and their respectivefinancial positions in determining whether an award is appropriate" (Morrissey vMorrissey, 259 AD2d 472, 473 [1999]; see Domestic Relations Law § 237 [a];Brantly v Brantly, 89 AD3d881, 882-883 [2011]; Dellafiora vDellafiora, 54 AD3d 715, 716 [2008]). Under the circumstances of this case, theSupreme Court providently exercised its discretion in declining to award the plaintiff anattorney's fee.
The plaintiff's remaining contentions are either without merit or not properly before thisCourt. Angiolillo, J.P., Lott, Roman and Miller, JJ., concur.