| Williams v Williams |
| 2012 NY Slip Op 07024 [99 AD3d 1094] |
| October 18, 2012 |
| Appellate Division, Third Department |
| Lisa M. Williams, Respondent, v Paul T. Williams,Appellant. |
—[*1] O'Brien & Associates, Albany (Kevin L. O'Brien of counsel), for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Brown, J.H.O.), entered June 6,2011 in Saratoga County, ordering, among other things, equitable distribution of the parties'marital property and maintenance to plaintiff, upon a decision of the court.
The parties were married in 1981 and have two adult children. Defendant (hereinafter thehusband) left the marital residence in 2007, commenced an action for divorce in 2008 anddiscontinued it six months later. As part of the stipulation of discontinuance, he agreed to paycertain living expenses on behalf of plaintiff (hereinafter the wife) totaling approximately $2,400per month. In 2009, the wife commenced this matrimonial action on the ground of abandonment.After joining issue, the husband stipulated to withdraw his answer and allow the wife to obtainan uncontested judgment of divorce. Following a nonjury trial on the issues of maintenance,equitable distribution and counsel fees, Supreme Court, among other things, granted the wife ajudgment of divorce, ordered the husband to pay $2,500 monthly in maintenance for six years,awarded the wife 50% of the marital portion of husband's pension and retirement plans anddirected him to pay approximately $17,000 for the wife's counsel fees. The husband appeals.
Initially, we reject the husband's challenge to the maintenance award. Maintenance isproperly awarded where "the marriage is of long duration, the recipient spouse has been out ofthe work force for a number of years [and] has sacrificed her or his own career development orhas made substantial noneconomic contributions to the household or to the career of the payor"(Ndulo v Ndulo, 66 AD3d1263, 1265 [2009]; accordO'Connor v O'Connor, 91 AD3d 1107, 1108 [2012]). Here, the husband has a Master'sdegree, worked full time throughout the parties' [*2]29-yearmarriage and, at the time of trial, was employed as an engineer with an annual salary ofapproximately $120,000. The wife has a high school education, worked as a secretary until thebirth of the parties' first child in 1981 and thereafter raised the parties' children at home until1994, when she took a part-time position as a teacher's assistant. In 2004, she began working fulltime in that role and, at the time of trial, was earning an annual salary of approximately $15,000.
The husband challenges the amount and duration of the award, noting that the purpose ofmaintenance is generally "to provide temporary support while the recipient develops the skills orexperience necessary to become self-sufficient" (Semans v Semans, 199 AD2d 790, 791[1993], lv denied 83 NY2d 758 [1994]). However, Supreme Court found it improbablethat the wife—who was 57 years old at the time of trial—will ever acquire job skillspermitting her to return to the comfortable upper-middle-class lifestyle that the parties enjoyedduring the marriage. The fact that she may become "self-supporting by some standard of livingdoes not mean that she is self-supporting in the context of the marital standard of living"(Ndulo v Ndulo, 66 AD3d at 1265). As the husband asserts, the findings of fact andconclusions of law contain inconsistencies and internal contradictions as to matters including theamount that he paid toward the wife's monthly expenses while the divorce waspending.[FN*] Nonetheless, finding that the award is supported by the record and that the court gaveappropriate consideration to the pertinent factors in addressing the "delicate balanc[e] of eachparty's needs and means," we defer to Supreme Court's discretionary determinations as to theamount and duration of maintenance (Mairs v Mairs, 61 AD3d 1204, 1208 [2009] [internal quotationmarks and citation omitted]; seeBiagiotti v Biagiotti, 97 AD3d 941, 942 [2012]; Carman v Carman, 22 AD3d 1004, 1008 [2005]).
The husband next challenges Supreme Court's equitable distribution of certain marital assets.A trial court has substantial discretion to fashion such awards based on the circumstances of eachcase, and the determination will not be disturbed absent an abuse of discretion or failure toconsider the requisite statutory factors (see Domestic Relations Law § 236 [B] [5][d]; Lurie v Lurie, 94 AD3d1376, 1378 [2012]; Keil v Keil,85 AD3d 1233, 1234 [2011]). We find no abuse of discretion here. As to the particularerrors alleged by the husband, the court did not err in valuing his pension and retirement benefitsas of the date of commencement of the action. It was within the court's discretion to select anyvaluation date between the date of commencement and the time of trial, and here the court reliedupon a report submitted by the husband stating values as of the commencement date (seeDomestic Relations Law § 236 [B] [4] [b]; Halse v Halse, 93 AD3d 1003, 1004 [2012]). The court properlydirected payment from each of the respective pension and retirement accounts and did not, as thehusband asserts, require payment of the total sum from only one account. The husband was notentitled to a credit for funds he withdrew from the retirement account while the divorce waspending as he did not establish that these amounts were used, as he claims, for the wife'sexpenses (see Pudlewski v Pudlewski, 309 AD2d 1296, 1297 [2003]; McGarrity vMcGarrity, 211 AD2d 669, 670-671 [1995]). Further, given the disparity in the parties'financial circumstances, the court did not abuse its discretion in allocating the entirety of theparties' student loan debt to the husband (see Sember v Sember, 72 AD3d 1150, 1152 [2010]; Lewis v Lewis, 6 AD3d 837, 840[2004]).
Finally, Supreme Court did not err in directing the husband to pay the wife's counsel feeswithout an evidentiary hearing. When the trial began, the parties stipulated to the submission ofbills received by the wife from her counsel as representative of the amount of her outstandinglegal fees. Thereafter, while arguing that he should not be held solely responsible for these fees,the husband neither challenged the reasonableness of the charges set forth in the bills norrequested a hearing on that issue (seeDow v Dow, 80 AD3d 848, 849 [2011]; compare Yarinsky v Yarinsky, 2 AD3d 1108, 1110 [2003];Redgrave v Redgrave, 304 AD2d 1062, 1066 [2003]). There was a sufficient evidentiarybasis for the court to weigh the parties' respective financial conditions and the value of counsel'sservices, and considering the totality of the circumstances (see Armstrong v Armstrong, 72 AD3d 1409, 1416 [2010]), theaward was within the court's discretion (see Harrington v Harrington, 93 AD3d 1092, 1094 [2012];O'Connor v O'Connor, 91 AD3d at 1109).
Mercure, J.P., Rose, Spain and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: These errors appear to haveresulted from the use of edited submissions by the parties; this practice "is not recommended. . . [because it] has the potential to create confusion and inconsistencies within theoverall decision" (Noble v Noble,78 AD3d 1386, 1387 [2010]).