| Heymann v Heymann |
| 2013 NY Slip Op 00306 [102 AD3d 832] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Thomas Heymann, Respondent, v GracielaHeymann, Appellant. |
—[*1] Farrauto, Berman & Slater, Yonkers, N.Y. (John P. Farrauto of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Westchester County (Tolbert,J.), dated May 19, 2011, as, upon a decision of the same court dated February 18, 2011,made after a nonjury trial, failed to direct the plaintiff to pay her an equal share of allmonthly distributions from the plaintiff's deferred compensation account retroactive tothe date of commencement of the action, failed to equitably distribute certain maritalassets which she claimed were wastefully dissipated by the plaintiff, failed to award hermaintenance, failed to calculate the plaintiff's child support obligation based upon thecombined parental income in excess of $130,000, and failed to award her an attorney'sfee.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by (1) adding a provision thereto directing the plaintiff to pay the defendantan equal share of all monthly distributions from the plaintiff's deferred compensationaccount retroactive to the date of the commencement of the action, and (2) deleting theprovision thereof awarding child support based only upon the first $130,000 of combinedparental income; as so modified, the judgment is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court,Westchester County, for a new determination of child support based upon total combinedparental income, and a determination of any arrears, and for the entry of an appropriateamended judgment thereafter; and it is further,
Ordered that pending the new award of child support, the plaintiff shall pay thedefendant child support in the sum of $2,026 per month for the support of their youngestchild.
Upon the commencement of this divorce action, the marital partnership ceased forthe purposes of equitable distribution of property (see Anglin v Anglin, 80 NY2d553, 557 [1992]). Upon the termination of the marital partnership, the plaintiff could usemarital property to satisfy joint familial obligations such as educational expenses of thechildren incurred during the pendency of the action (see Weintraub v Weintraub, 79 AD3d 856, 857 [2010]; Raynor v Raynor, 68 AD3d835, 838 [2009]). However, in his trial testimony, the plaintiff admitted that he usedthe distributions from his deferred [*2]compensationaccount to pay his share of expenses which the parties agreed to split evenly, as well as topay his obligations pursuant to a pendente lite order dated April 12, 2010, which directedhim to pay the defendant child support of $3,000 per month, retroactive to December2009, plus an attorney's fee in the sum of $15,000. Since those obligations were the soleobligations of the plaintiff, his use of marital funds to make those payments wasimproper, and the defendant is entitled to her equitable share of those funds, to wit, 50%(see Many v Many, 84AD3d 1036, 1037 [2011]; Le v Le, 82 AD3d 845, 846 [2011]; Epstein v Messner, 73 AD3d843, 845 [2010]; Azizo vAzizo, 51 AD3d 438 [2008]). Accordingly, the defendant is entitled to 50% ofall distributions from the deferred compensation account, retroactive to the date of thecommencement of this action. However, the Supreme Court properly concluded that thedefendant failed to meet her burden of proving by a preponderance of the evidence thatthe plaintiff committed wasteful dissipation of other marital assets, including certain jointaccounts (see Raynor v Raynor, 68 AD3d at 838).
The amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court and each case must be determined on its unique facts (see Carr-Harris v Carr-Harris,98 AD3d 548, 551 [2012]; Mazzone v Mazzone, 290 AD2d 495, 496[2002]). The factors to consider in awarding maintenance include "the standard of livingof the parties during the marriage, the income and property of the parties, the distributionof marital property, the duration of the marriage, the health of the parties, the present andfuture earning capacity of both parties, the ability of the party seeking maintenance tobecome self-supporting, and the reduced or lost lifetime earning capacity of the partyseeking maintenance" (Kret v Kret, 222 AD2d 412, 412 [1995], citing DomesticRelations Law § 236 [B] [6] [a]; see Meccariello v Meccariello, 46 AD3d 640, 641-642[2007]). In light of the defendant's earning capacity and the distribution of maritalproperty, we decline to disturb the Supreme Court's determination denying the defendantmaintenance (see Carr-Harris vCarr-Harris, 98 AD3d 548, 552 [2012]; Haagen-Islami v Islami, 96 AD3d 1004 [2012]; Scher v Scher, 91 AD3d842, 848 [2012]).
It is undisputed that the parties enjoyed a high standard of living during the marriage,which they could no longer afford after the plaintiff lost his high-paying position. At thetime of the trial, the plaintiff was employed again, although at a lesser salary. The maritalstandard of living and the pendente lite child support award of $3,000 per month wasrelevant to what would constitute a just and appropriate child support award (see Holterman v Holterman, 3NY3d 1, 10 [2004]; Lago vAdrion, 93 AD3d 697 [2012]). There was no basis under these circumstances tolimit the child support award to the statutory cap of the first $130,000 of combinedparental income. In view of the standard of living enjoyed by the children during themarriage, and the earnings and assets of the parties, we deem it appropriate that the childsupport award be based upon total combined parental income.
We decline to disturb the Supreme Court's determination that the defendant was notentitled to an attorney's fee. In light of the substantial distributive award in her favor, sheis capable of paying for her own attorney (see Scher v Scher, 91 AD3d at 848;Celauro v Celauro, 295 AD2d 388, 389 [2002]; cf. Levy v Levy, 4 AD3d398, 398 [2004]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Dickerson,Miller and Hinds-Radix, JJ., concur.