| Murray v Murray |
| 2012 NY Slip Op 08612 [101 AD3d 1320] |
| December 13, 2012 |
| Appellate Division, Third Department |
| Joseph Murray, Appellant, v Suzanne Murray,Respondent. |
—[*1] Michael D. Altman, South Fallsburg, for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Sackett, J.), entered June 13, 2011in Sullivan County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
The parties were married in 1986 and have four children (born in 1987, 1989, 1992 and1994). Approximately 15 months before the marriage, plaintiff (hereinafter the husband)purchased a residence in Queens County. Following their marriage and some renovations to thisproperty, the parties lived there together for several years. In 1991, the husband conveyed thisproperty to himself and defendant (hereinafter the wife) jointly. The parties thereafter refinancedthe Queens County property and used the proceeds to purchase a second residence in the Town ofCallicoon, Sullivan County (hereinafter the marital residence). They resided there together andrented out the Queens County property, until 2003, when the husband left the marital residence.In 2004, a Support Magistrate ordered the husband to pay child support and directed that he pay75% of any unreimbursed medical expenses.
The husband commenced this divorce action in 2005. Following a lengthy trial, SupremeCourt, among other things, granted exclusive possession of the marital residence to the wife untilthe emancipation of the youngest child, ordered the equitable distribution of a motorcycle and therental income from the Queens County property, and directed the husband to pay weekly childsupport and—beginning upon the youngest child's emancipation—monthly [*2]maintenance to the wife for 10 years or until she remarries. Thecourt further continued the prior order directing the husband to pay 75% of the unreimbursedmedical expenses, and also required him to pay the wife a lump sum representing one half ofcertain wasted marital assets, to maintain life insurance policies and to provide college funds forthe unemancipated children. The husband appeals.
Initially, we find that denying the husband a credit for the premarital value of the QueensCounty property was within Supreme Court's discretion. The transfer of that property into jointownership created a presumption that it was marital property, placing the burden upon thehusband to rebut this presumption with clear and convincing proof that the transfer was solely amatter of convenience (see Campfield vCampfield, 95 AD3d 1429, 1430 [2012], lv dismissed 20 NY3d 914 [2012]; Burtchaell v Burtchaell, 42 AD3d783, 787 [2007]). Here, the husband's testimony regarding the Queens Countyproperty—characterized by Supreme Court as evasive and questionable—failed torebut the presumption (see Currie vMcTague, 83 AD3d 1184, 1185 [2011]). The entire Queens County property was thuspart of the parties' marital property and subject to equitable distribution and the court's"substantial discretion in fashioning an award" (Lurie v Lurie, 94 AD3d 1376, 1378 [2012]; see Quinn v Quinn, 61 AD3d1067, 1069 [2009]; Domestic Relations Law § 236 [B] [5] [c], [d]). While a credit isoften given for the value of the former separate property (see Lurie v Lurie, 94 AD3d at1377-1378; Milnarik v Milnarik, 23AD3d 960, 962 [2005]; Myers v Myers, 255 AD2d 711, 716 [1998]), such credit isnot strictly mandated since the property is no longer separate, but is part of the total maritalproperty. "There is no single template that directs how courts are to distribute a marital asset thatwas acquired, in part or in whole, with separate property funds" (Fields v Fields, 15 NY3d 158, 167[2010]). Upon review of the record and the entirety of the equitable distribution award, we areunpersuaded that Supreme Court abused its discretion relative to the Queens County property.
For similar reasons, Supreme Court did not err in ordering the liquidation and equal divisionof the parties' Verizon stock. The husband testified that he owned at least some of this stockbefore the marriage, but offered no specific evidence supporting this claim. Most significantly,all of the stock was placed in joint ownership during the marriage. The husband was thusrequired to rebut the resulting presumption that this asset was marital property by clear andconvincing evidence, and his mere assertion that he objected to this transfer did not meet thatsignificant burden (see Burtchaell v Burtchaell, 42 AD3d at 787; Chiotti v Chiotti, 12 AD3d 995,996-997 [2004]). As to the husband's claim that Supreme Court should have considered the taxconsequences of this order, the record reveals no request for such consideration nor evidenceupon which such an analysis could have been based (see Cameron v Cameron, 51 AD3d 1165, 1166 [2008], lvdenied 11 NY3d 702 [2008]; Vicinanzo v Vicinanzo, 193 AD2d 962, 968 [1993]).
Next, the husband challenges the maintenance award. The amount and duration of this awardare addressed to the sound discretion of the trial court, and will not be disturbed provided that thestatutory factors and the parties' predivorce standard of living are considered (seeDomestic Relations Law § 236 [B] [6] [a]; Biagiotti v Biagiotti, 97 AD3d 941, 942 [2012]; Roberto v Roberto, 90 AD3d1373, 1376 [2011]). Here, in reviewing the pertinent factors, Supreme Court placedparticular emphasis on the persistent significant disparity in the parties' incomes, the wife'slimited prospects for increased earnings, and the lost income, earning capacity and retirementsavings that she incurred by remaining out of the paid work force to raise the parties' children forapproximately 17 years during the marriage. In this regard, the court credited the wife's testimonythat the husband demanded that she stay at home with the children [*3]during this time. Thus, given that "the marriage is of long duration,the recipient spouse has been out of the work force for a number of years [and] has sacrificed her. . . own career development or has made substantial noneconomic contributions tothe household or to the career of the payor" (Ndulo v Ndulo, 66 AD3d 1263, 1265 [2009]), we find SupremeCourt's decision to render an award of maintenance well supported by the record (see O'Connor v O'Connor, 91 AD3d1107, 1108-1109 [2012]; Brzuszkiewicz v Brzuszkiewicz, 28 AD3d 860, 862 [2006]).
Nonetheless, the structure of the award is inappropriate, as it is wholly deferred until thechild support payments cease. Awards of maintenance and child support are based on interrelatedfactors, but do not serve the same purposes; maintenance is intended for the support of therecipient spouse, while child support is paid for the "care, maintenance and education of anyunemancipated child" (Domestic Relations Law § 240 [1-b] [b] [2]; see Roberto vRoberto, 90 AD3d at 1376). Further, because the interrelated factors upon which awards ofsupport and maintenance are based may change in unanticipated ways, it is inappropriate toprovide for future increases or decreases in maintenance "[e]xcept when a judgment provides foran imminent and measurable change" (Majauskas v Majauskas, 61 NY2d 481, 494[1984]). Thus, Supreme Court erred in delaying the commencement of the maintenanceobligation until the child support payments terminate, and remittal is required for reconsiderationof the appropriate amount and duration of the award, and for recalculation of the child supportaward if required by any resulting adjustments in the parties' income for this purpose (see O'Brien v O'Brien, 88 AD3d775, 777-778 [2011]; Landgraf vNeuhaus, 77 AD3d 590, 590 [2010]; Dawson v Dawson, 152 AD2d 717,720-721 [1989]).
Additional issues are posed relative to child support. During the course of the trial, whichbegan in 2007 and ended in 2010, the husband moved for pendente lite reduction of the 2004child support order based upon the emancipation of the parties' older two children in February2008 and September 2010, respectively.[FN1]Supreme Court denied pendente lite relief, stating that appropriate modifications would be madeat the conclusion of the action. The findings of fact and conclusions of law issued following thetrial continued the 2004 child support order in full force and effect, but recognized theemancipations by reducing the applicable percentage to reflect support for three children as ofFebruary 2008, and for two children as of September 2010. As the husband had paid support forthe four children throughout the pendency of the action, the court held that he was entitled tocredit for overpayments in 2008, 2009 and 2010. The husband now contends that Supreme Courterred in basing the child support on the parties' incomes in 2004, rather than as revealed in themost recent tax returns. We disagree. The husband bore the burden of establishing a substantialchange in circumstances requiring downward modification of the prior order (seeDomestic Relations Law § 236 [B] [9] [b]; Cheney v Cheney, 86 AD3d 833, 835 [2011]; Cynoske v Cynoske, 8 AD3d 720,722 [2004]), and emancipation was the only change in circumstances that he alleged. "[A] childsupport obligation turns on a parent's ability to provide support, rather than the parent's currentfinancial situation" (Matter of Freedmanv Horike, 68 AD3d 1205, 1206 [2009], lv dismissed and denied 14 NY3d 811[2010]; see Matter of Heyn v Burr,6 AD3d 781, 782 [2004]). The husband made no showing of "an unexpected andunreasonable change in circumstances" that altered his ability to provide support after 2004 (Matter of Kelly v Schoonbeck, 34AD3d 1094, 1096[*4][2006]; see Matter of Broome County SupportCollection Unit v Corey, 44 AD3d 1128, 1130 [2007]).[FN2]Accordingly, we find no error in Supreme Court's choice to continue the terms of the existingchild support order, with limited modifications to reflect the emancipation (see Family CtAct § 462; compare Zwickel vSzajer, 47 AD3d 1157, 1157 [2008]).
For the same reasons, we reject the husband's contention that Supreme Court erred incontinuing the prior direction relative to unreimbursed medical expenses rather than recalculatinghis pro rata share based on more recent figures (see Domestic Relations Law § 240[1-b] [c] [5] [v]; Matter of Lewis vRedhead, 37 AD3d 469, 470 [2007]). However, we further note that the court'sdirections regarding credit for the husband's overpayments were not included within the finaljudgment of divorce and, thus, the judgment must be modified to correct this omission and thematter remitted for determination of whether any credit is due to the husband for any additionaloverpayments potentially made in 2011 prior to entry of the final judgment. Finally, we agreewith the husband that, as he makes substantial child support payments and thus meets asignificant portion of the unemancipated children's financial needs, Supreme Court'sdetermination regarding tax exemptions should be modified to permit him to claim one childannually as an exemption on his tax returns (see Rich-Wolfe v Wolfe, 83 AD3d 1359, 1361 [2011]; Quinn v Quinn, 61 AD3d 1067,1070 [2009]).
Next, Supreme Court did not err in deferring the sale of the marital residence until theemancipation of the parties' youngest child. The wife is the custodial parent, the husband did notestablish that he was in immediate need of his share of the proceeds of such a sale, and the recordreveals that the husband was best able to find an alternate residence and the wife was financiallyable to manage the costs of the marital residence, having done so without assistance from thehusband throughout the pendency of the divorce (see Sember v Sember, 72 AD3d 1150, 1151 [2010]; Nissen v Nissen, 17 AD3d 819,820 [2005]).
Supreme Court further properly directed the husband to pay the wife one half of the value ofcertain wastefully dissipated marital assets (see Domestic Relations Law § 236 [B][5] [d] [12]; Roberto v Roberto, 90 AD3d at 1375). The husband admitted that he cashedsome of the parties' United States savings bonds while the divorce was pending, and the issuesposed by his inconsistent testimony as to the value of these bonds, as well as his claim that thewife cashed additional bonds by forging his signature, were for Supreme Court to resolve (seeRosenkranse v Rosenkranse, 290 AD2d 685, 687 [2002]; Butler v Butler, 256 AD2d1041, 1044 [1998], lv denied 93 NY2d 805 [1999]).[FN3]We find no abuse of the court's considerable discretion in assessing the credibility of these claims(see Noble v Noble, 78 AD3d1386, 1388 [2010]; Altieri vAltieri, 35 AD3d 1093, 1095 [2006]).[*5]
We reject the husband's contention that Supreme Court improperly ordered him to obtain lifeinsurance without imposing a reciprocal obligation on the wife. A trial court may, in itsdiscretion, secure payments for the support of a dependent spouse or unemancipated children byrequiring the purchase of insurance on the life of a spouse who is obliged to make such payments(see Domestic Relations Law § 236 [B] [8] [a]; Hartog v Hartog, 85 NY2d36, 50 [1995]; Holterman v Holterman, 307 AD2d 442, 442-443 [2003], affd 3NY3d 1 [2004]). The wife had no such obligation to be secured.
The husband next objects to Supreme Court's judgment directing him to pay $2,500 eachsemester toward college costs for the unemancipated children. A court may require a parent tomake payments toward college costs upon a finding of special circumstances, a determinationthat is based upon the payor spouse's financial status, the educational background of both parentsand the academic ability of the children (see Domestic Relations Law § 240 [1-b][c] [7]; McAuliffe v McAuliffe, 70AD3d 1129, 1133-1134 [2010]; Brough v Brough, 285 AD2d 913, 916-917 [2001]).Here, the court made no such finding, but the record is sufficiently well developed to permit us toexercise our independent authority to review the evidence on this issue (see generally Matter of Friar Tuck Inn ofCatskills v Town of Catskill, 2 AD3d 1089, 1089-1090 [2003]), and we find that therequisite special circumstances exist. At the time of trial, one of the parties' emancipated childrenwas enrolled in college, and the older of the two unemancipated children, a high school senior,was planning to attend college after graduation. The parties' long-standing intention to assist theirchildren with college costs was revealed by the husband's testimony that their original purpose inbuying the previously discussed savings bonds—which were purchased over a period ofmany years—was to establish college funds for the children. As to ability to pay, thehusband's income, as previously noted, is substantially greater than the wife's income. Given herlimited resources and the parties' mutual commitment to their children's education, there was noabuse of discretion in ordering the husband to contribute to college costs (see Matter ofHealey v Healey, 190 AD2d 965, 968 [1993]).[FN4]
Supreme Court did not err in directing the sale of a motorcycle and equal division of theproceeds, as the husband testified that the motorcycle was purchased during the marriage withmarital funds (see Domestic Relations Law § 236 [B] [1] [c]; Cease v Cease, 72 AD3d 1450,1451 [2010]). As to his claim that he should have been separately credited for payments he madeon the purchase loan for the motorcycle after the divorce action was commenced, the recordincludes no documentation of any such payments, and his testimony on this subject wasinsufficiently specific to permit a determination as to whether such payments were made and, ifso, in what amount.
Finally, Supreme Court did not abuse its discretion by ordering the husband to pay one halfof the rental income from the Queens County property to the wife until the sale of the property,without deducting therefrom any expenses or carrying charges. The husband's sole responsibilityfor expenses related to the Queens County property is balanced by the wife's sole responsibilityfor the expenses of the marital residence, which—unlike the Queens County [*6]property—produces no income. Further, the husbandacknowledged that he incurred substantial losses by choosing to leave the property vacant forseveral years, took full deductions for these losses on his income tax returns without sharingthem with the wife, and did not advise the wife or share rentals with her when the property wasrented again in 2009. In view of all the circumstances, this aspect of the award was not an abuseof the court's discretion (see Lurie v Lurie, 94 AD3d at 1378; Owens v Owens,288 AD2d 782, 783 [2001]).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by (1) reversing so much thereof as awardeddefendant monthly maintenance for a 10-year period commencing upon the emancipation of theparties' youngest child and so much thereof as based the calculation of the parties' income forchild support purposes upon the deferred maintenance obligation, (2) granting plaintiff the rightto claim one of the parties' children as an exemption for federal and state income tax purposes,and (3) granting plaintiff credits in the amount of $6,515 for child support overpayments in 2008,2009 and 2010, and an additional credit for child support overpayments in 2011, if any; matterremitted to the Supreme Court for further proceedings not inconsistent with this Court's decision;and, as so modified, affirmed.
Footnote 1: Neither this application nor aprior pendente lite motion for downward modification of child support, apparently made by thehusband in 2006, were included in the record.
Footnote 2: Notably, the record reveals thata primary reason for fluctuations in the husband's income during the pendency of the action washis decision not to rent the Queens County property; this choice does not warrant a reduction ofhis child support obligation (see Matterof Bianchi v Breakell, 48 AD3d 1000, 1003 [2008]; Hall v Hall, 22 AD3d 979, 981 [2005]).
Footnote 3: The husband does not challengeSupreme Court's additional determination that he wasted marital assets by withdrawingapproximately $7,000 from a joint checking account.
Footnote 4: Contrary to the husband's claim,no windfall to the wife will result if tuition in any semester is less than $2,500, as the judgmentexpressly directs that any such excess be applied solely to college-related expenses.