| Musacchio v Musacchio |
| 2013 NY Slip Op 04857 [107 AD3d 1326] |
| June 27, 2013 |
| Appellate Division, Third Department |
| Anthony C. Musacchio, Appellant, v Christine M.Musacchio, Respondent. |
—[*1] Steven Nussbaum, New Paltz, for respondent.
Spain, J. Appeal from a judgment of the Supreme Court (Work, J.), entered February17, 2012 in Ulster County, ordering, among other things, primary physical custody of theparties' children to defendant and equitable distribution of the parties' marital property,upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were marriedin 1990 and are the parents of three children (born in 1993, 1995 and 2001). In April2009, the husband commenced this divorce action and, after the wife did not contest hisallegations of constructive abandonment, the remaining issues proceeded to trial.Supreme Court, among other things, awarded the parties joint legal custody of thechildren with primary physical custody to the wife, directed the husband to pay the wife adistributive award in the amount of $143,705.22, awarded the wife $4,858.34[FN1] in maintenance per month for 7½ years and $3,141.66 in child support per month.The husband now appeals.[FN2][*2]
Initially, the husband's arguments that SupremeCourt erred in failing to appoint an attorney for the children, order forensic evaluationsor conduct in camera interviews of the children prior to reaching its custodydetermination are not preserved for appellate review because, when given theopportunity, he failed to request any of the foregoing (see Dana-Sitzer v Sitzer, 48AD3d 354, 354 [2008]; seealso Gerson v Gerson, 57 AD3d 606, 607-608 [2008]; Matter of Thompsonv Thompson, 267 AD2d 516, 519 [1999]). While trial courts are stronglyencouraged to appoint an attorney for the children in contested custody matters, " 'suchappointment is discretionary, not mandatory' " (Matter of Ames v Ames, 97 AD3d 914, 916 [2012], lvdenied 20 NY3d 852 [2012], quoting Lips v Lips, 284 AD2d 716, 716[2001]; see Family Ct Act § 249 [a]; Moor v Moor, 75 AD3d 675, 679 [2010]; Matter of Swett v Balcom, 64AD3d 934, 936 [2009], lv denied 13 NY3d 710 [2009]). Notably, at thebeginning of the long delayed trial, the husband—for the firsttime—apprised the court that his pretrial proposal to settle the issues of custodyand visitation had been withdrawn. The wife's counsel then requested that the courtappoint an attorney to represent the children while the husband's counsel, rather than jointhat request, insisted that the trial proceed without interruption. Although the wife'srequest was ultimately denied, the court noted that it would have appointed an attorneyfor the children had it known that custody was an issue. Under these circumstances, andin light of the evidence in the record supporting the court's well-reasoned decisionresolving custody and visitation, we cannot say that the court abused its discretion.
To the extent that the husband argues that Supreme Court's award of primaryphysical custody of the children to the wife lacks a sound and substantial basis in therecord, we cannot agree. It is well settled that the overriding concern in custody mattersis the best interests of the children, requiring the court to consider "all relevant factorsincluding the parents' ability to provide a stable home environment for the child[ren], thechild[ren's] wishes, the parents' past performance, relative fitness, ability to guide andprovide for the child[ren's] overall well-being, and the willingness of each parent tofoster a relationship with the other parent" (Helm v Helm, 92 AD3d 1164, 1166 [2012] [internalquotation marks and citations omitted]; see Matter of Rundall v Rundall, 86 AD3d 700, 701[2011]; Matter of Lynch vGillogly, 82 AD3d 1529, 1530 [2011]). The trial court's determination in thatrespect will not be disturbed so long as it is supported by a sound and substantial basis inthe record (see Helm v Helm, 92 AD3d at 1166; Matter of Rundall vRundall, 86 AD3d at 701-702).
While it is clear that the husband has been a loving and supportive parent, the recordestablishes that the wife was, and always has been, the children's primary caretaker. Assuch, she was actively involved in their schooling, activities and medical care. Thehusband, on the other hand, traveled extensively for his career in the financial industryand often worked late hours. The court found that awarding primary physical custody tothe wife would, among other things, maintain the greatest stability for the children,noting that the wife was genuinely willing to foster the husband's relationships with thechildren. According due deference, we find that the award of primary physical custody tothe wife was in the children's best interests (see Matter of Christina MM. v George MM., 103 AD3d935, 937 [2013]; Helm v Helm, 92 AD3d at 1166). Likewise, mindful that"Supreme Court is afforded wide discretion in crafting an appropriate [*3]visitation schedule" (DeLorenzo v DeLorenzo, 81 AD3d 1110, 1112 [2011],lv dismissed 16 NY3d 888 [2011]), we discern no abuse of discretion in thecourt's parenting schedule—providing the father with one weeknight per week,every other weekend and as the parties can agree, which provides him frequent andregular access to the children (see Matter of Maziejka v Fennelly, 3 AD3d 748, 749[2004]).
While the husband does not challenge Supreme Court's overall calculation of hischild support obligation, he does contend that the court erred by ordering him to pay thefull cost of the children's health, dental and vision insurance, childcare and allunreimbursed copays until the wife's income exceeds $50,000. We agree that the wifeshould have been ordered to pay her pro rata share (3.458% at the time of trial) of theseexpenses, and we modify accordingly (see Domestic Relations Law § 240[1-b] [c] [4], [5] [i], [ii], [v]; Hughes v Hughes, 79 AD3d 473, 476 [2010]; Matter of Dudla v Coyle, 22AD3d 990, 991 [2005]; Nichols v Nichols, 19 AD3d 775, 778 [2005]; cf. Matter of Anonymous vAnonymous, 31 AD3d 955, 957 [2006]).
We next consider the husband's arguments concerning Supreme Court's separateproperty determinations and distribution of the parties' marital property. First, althoughthe husband's Chase savings account was held in his name alone, it was opened duringthe marriage and, thus, it was his burden to prove that it was separate property (see Vertucci v Vertucci, 103AD3d 999, 1004 [2013]; Judson v Judson, 255 AD2d 656, 657 [1998];Seidman v Seidman, 226 AD2d 1011, 1012 [1996]). While it is undisputed that,prior to the marriage, the husband received approximately $132,000 as a personal injuryaward—which would constitute separate property (see Domestic RelationsLaw § 236 [B] [1] [d] [2])—his testimony concerning the location of thesefunds was not credible or consistent.[FN3]As the husband failed to carry his burden to establish that the savings account wasseparate property, it was properly classified and equitably distributed as marital property(see Vertucci v Vertucci, 103 AD3d at 1004; Murray v Murray, 101 AD3d 1320, 1322 [2012], lvdismissed 20 NY3d 1085 [2013]; Steinberg v Steinberg, 59 AD3d 702, 704 [2009]; compare D'Ambra v D'Ambra,94 AD3d 1532, 1535 [2012]). On the other hand, the husband's more consistenttestimony that $9,695.92 of his IRA account consisted of premarital earnings wasuncontroverted by the wife and conceded in her written summation; thus, the husband isentitled to be credited that amount (see Keil v Keil, 85 AD3d 1233, 1235 [2011]; London v London, 21 AD3d602, 604 [2005]) and, accordingly, the value of the IRA account subject to thequalified domestic relations order is $156,945.89. [*4]Additionally, the husband correctly points out an error inthe court's calculation of the wife's distributive award, which should equal $148,938.09rather than $143,705.22.
With regard to the division of marital property, "there is no requirement that thedistribution of each item of marital property be on an equal or 50-50 basis" (Quinn v Quinn, 61 AD3d1067, 1069 [2009] [internal quotation marks and citation omitted]; see Lurie v Lurie, 94 AD3d1376, 1378 [2012]). Moreover, "[a] trial court has substantial discretion to fashion[equitable distribution] awards based on the circumstances of each case, and thedetermination will not be disturbed absent an abuse of discretion or failure to considerthe requisite statutory factors" (Vertucci v Vertucci, 103 AD3d at 1001 [internalquotation marks and citation omitted]; see Williams v Williams, 99 AD3d 1094, 1096 [2012]).
In light of the disparity in the parties' financial circumstances and their future earningpotential, as well as the wife's loss of inheritance rights and health insurance, factors thatwere considered by Supreme Court, and considering that "marital property is distributedin light of the needs and circumstances of the parties" (Brzuszkiewicz vBrzuszkiewicz, 28 AD3d 860, 861 [2006] [internal quotation marks and citationomitted]), the court's decision not to award the husband a portion of the wife'sinsubstantial IRA and life insurance policy was not an abuse of discretion. It would,however, be more practical and equitable for the wife to equally split the payments thatthe husband will receive from his AIG pension annuity should he reach the age of 65,subject to a qualified domestic relations order, rather than requiring him to purchase aseparate annuity for her (see e.g. Malin v Malin, 172 AD2d 721, 722 [1991]).Finally, as the husband volunteered to absorb the full amount of any deficiency judgmentif the marital residence were sold at a loss, he cannot now be heard to complain that thecourt ordered him to do so and, in any event, it was not error (see Ropiecki v Ropiecki, 94AD3d 734, 736 [2012]).
Turning to the husband's challenge to the wife's maintenance award, it is well settledthat the amount and duration of maintenance is an issue that is generally left to the sounddiscretion of the trial court so long as the court considers the enumerated statutory factors(see Domestic Relations Law § 236 [B]; Murray v Murray, 101AD3d at 1322; Williams v Williams, 99 AD3d at 1096). Notably, maintenance isappropriate where, among other things, " 'the marriage is of long duration, [and] therecipient spouse has been out of the work force for a number of years [and] has sacrificedher or his own career development or has made substantial noneconomic contributions tothe household or to the career of the payor' " (Williams v Williams, 99 AD3d at1095, quoting Ndulo vNdulo, 66 AD3d 1263, 1265 [2009]; see Murray v Murray, 101 AD3dat 1322).
Here, in reviewing the appropriate factors, Supreme Court considered the parties'financial circumstances, their age, the length of their marriage (21 years), and the wife'sloss of substantial inheritance rights and health insurance. The court placed particularsignificance on the disparity between the husband's income, which exceeded $200,000,and the wife's income, which was less than $10,000 a year. Notably, early in the parties'marriage, the wife quit her job so that the parties could move to another state where thehusband had obtained employment and, thereafter, the family moved often for thehusband's career. The court further considered the wife's post-divorce ability to increaseher earning potential, taking into account her age and prolonged absence from the workforce. Accordingly, as the court considered the requisite factors, we discern no abuse ofdiscretion in the amount and duration of the maintenance awarded (see Murray vMurray, 101 AD3d at 1322; Harrington v Harrington, 93 AD3d 1092, [*5]1094 [2012]; O'Connor v O'Connor, 91 AD3d 1107, 1108-1109 [2012];Roberto v Roberto, 90AD3d 1373, 1376 [2011]). The husband's remaining contentions have beenconsidered and determined to be without merit.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by reversing so much thereof as (1)ordered plaintiff to pay 100% of the costs of the children's health, dental and visioninsurance, unreimbursed copays and childcare expenses, (2) ordered equitabledistribution of all of plaintiff's IRA account, (3) awarded defendant $143,705.22 inequitable distribution and (4) ordered plaintiff to purchase a new annuity for the benefitof defendant; defendant is ordered to pay her pro rata share (3.458%) of the children'shealth, dental and vision insurance, unreimbursed copays and childcare expenses,$9,695.92 of plaintiff's IRA account is his separate property, leaving the reduced value ofthe IRA subject to a qualified domestic relations order at $156,945.89, and defendant isawarded $148,938.09 in equitable distribution and 50% of plaintiff's AIG pensionannuity payments via a qualified domestic relations order should plaintiff reach the ageof 65; and, as so modified, affirmed.
Footnote 1: Approximately $4,100of this amount was to cover the carrying costs on the marital residence. Supreme Courtordered that once the marital residence was sold, the maintenance amount woulddecrease to $4,274.84.
Footnote 2: While the husbandappealed from the October 7, 2011 decision in error, we granted his motion to deem thenotice of appeal to be a valid appeal taken from the final judgment of divorce, datedJanuary 17, 2012. We also subsequently denied the wife's motion to dismiss thehusband's appeal as untimely (2012 NY Slip Op 93039[U] [2012]).
Footnote 3: The husband initiallytestified that all of the personal injury funds were deposited in a Wachovia account andthat, in 2008, he transferred $60,000 of those funds into the newly opened Chase savingsaccount. Despite his testimony that there were no more deposits into the savings account,at the commencement of this action, that account had a balance of approximately$94,000 and the husband never accounted for the $34,000 surplus. This confusion wascompounded by the husband's later testimony that he used some of the personal injuryaward funds in the savings account to pay household bills and that the Chase savingsaccount had a balance of approximately $152,000. Moreover, on his statement of networth, the husband listed the source of the $94,000 in this account as his "earnings," notas compensation for personal injuries.