| Bellizzi v Bellizzi |
| 2013 NY Slip Op 04868 [107 AD3d 1361] |
| June 27, 2013 |
| Appellate Division, Third Department |
| John J. Bellizzi Jr., Respondent, v Patricia Bellizzi,Appellant. |
—[*1] Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC, Albany(Stephen C. Prudente of counsel), for respondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (O'Connor, J.), enteredOctober 15, 2012 in Albany County, ordering, among other things, equitable distributionof the parties' marital property, upon a decision of the court.
The parties were married in June 1969, and they have three children, all of whom areadults. Plaintiff (hereinafter the husband) commenced a divorce action in October 2008that was dismissed following a trial (Bellizzi v Bellizzi, 82 AD3d 1541, 1542 [2011]) and thissecond divorce action was commenced in November 2011. Both parties are in theirmid-60s, have had serious health issues, are retired and receive Social Security (thehusband $1,648 per month and defendant [hereinafter the wife] $1,137 per month). Inthe second action, they stipulated that a divorce would be granted pursuant to recentlyenacted Domestic Relations Law § 170 (7). A trial ensued regarding, among otherthings, equitable distribution and maintenance. After making adjustments to correctmathematical errors, the primary marital assets were divided by Supreme Court asfollows: the wife received the marital home ($270,000), a retirement account ($7,798.62)and part of the cash in bank accounts ($20,093.25), for a total value of$297,891.87;[FN1][*2]and the husband received retirement accounts($172,485.83) and part of the cash in bank accounts ($65,969.66), for a total value of$238,455.49. Significantly, the husband also has two pensions in pay status; one forservice in the Air Force of $1,689 per month and a New York State pension of $6,818per month. Supreme Court made no distribution of his two pensions, but treated them asincome streams for purposes of maintenance, which was made nondurational and set at$2,800 per month. The court further determined in its February 2012 decision that,although the wife was entitled to retroactive maintenance from January 2009 for a totalof $103,600 (37 months), the husband was entitled to credits for payments already madeof $131,000 and, thus, he did not owe retroactive maintenance. The wife's application forcounsel fees was denied and the husband's application for an order of protection wasgranted. The wife appeals.
There is no requirement that each item of marital property be distributed equally andthe trial court has discretion in fashioning a division of property (see Vertucci v Vertucci, 103AD3d 999, 1001 [2013]; Quinn v Quinn, 61 AD3d 1067, 1069 [2009]). However,relative parity is appropriate here in light of the 40-plus years of marriage and no factorsjustifying an unequal distributive award (see Stahl v Stahl, 80 AD3d 932, 933 [2011]; Baudischv Baudisch, 233 AD2d 834, 834 [1996]).
We find persuasive the wife's argument that the husband's pay status governmentpensions should have been equitably distributed rather than simply treated as an incomestream for purposes of maintenance. Care must be taken to avoid double counting of theinterdependent issues of distribution of a pension and maintenance, and there may besituations where maintenance would be more appropriate (cf. Grunfeld vGrunfeld, 94 NY2d 696, 705 [2000]). Nonetheless, maintenance looks to factors andimplicates discretion, which permitted Supreme Court in this case to arrive at a monthlyamount less than the monthly value of the pensions (see e.g. Lipovsky vLipovsky, 271 AD2d 658, 659 [2000], lv dismissed 95 NY2d 886 [2000],lv denied 96 NY2d 712 [2001]). Under the circumstances, awarding a percentageof the pay status pensions more accurately and equitably reflects the value to the wife ofthese assets earned during the long-term marriage (cf. Tolosky v Tolosky, 304AD2d 876, 877 [2003]; McAteer v McAteer, 294 AD2d 783, 785 [2002]).
The husband's state pension was earned entirely during the marriage and,accordingly, the wife should receive 50% of the monthly payment. The fact that thehusband elected an option at the time of his retirement that provides the wife withone-half his monthly amount if he predeceases her, which results in a current lowermonthly payment, is not a sufficient reason to award the wife less than 50% of thecurrent monthly payment.
The military pension was earned as a result of the husband's full-time active duty andalso part-time service from 1966 to 1993. The husband testified that the pension is basedon a point system with a larger number of points earned during an active duty year asopposed to a part-time duty year. The husband related that he was commissioned in July1966, commenced active duty in February 1968, ended active duty and joined thereserves in September 1973, and separated from service in December 1993. Althoughapproximately 75% of active duty and 90% of part-time service ostensibly occurredduring the marriage and it appears that the wife should receive about 40% to 45% of thatpension, the record is not sufficiently complete regarding when and how points wereearned toward the husband's military pension. Accordingly, we remit to Supreme Courtto determine the percentage after considering submission of relevant proof on [*3]that issue (see Cowley v Cowley, 15 AD3d 974, 976[2005]).[FN2]
As conceded by the wife and necessary to avoid double-counting (see Majauskasv Majauskas, 61 NY2d 481, 492-493 [1984]), her maintenance shall cease upon thepension distribution taking effect since those pensions are the primary source of thehusband's income upon which maintenance was calculated (see Messemer vMessemer, 272 AD2d 672, 673 [2000]). This renders academic the wife's contentionthat the maintenance award was inadequate, except to the extent that she seeks anincrease for purposes of retroactive maintenance and also seeks retroactivity to a dateearlier than set by Supreme Court. Initially, we note that Supreme Court discussedmaintenance in detail, including all the statutory factors, and the amount of the awardwas within its discretion (seeO'Connor v O'Connor, 91 AD3d 1107, 1108 [2012]; Miller v Miller, 4 AD3d718, 720 [2004]; Holterman v Holterman, 307 AD2d 442, 442 [2003],affd 3 NY3d 1 [2004]). However, the record does reflect that the wife firstrequested maintenance two months earlier than found by Supreme Court and,accordingly, the proper amount of retroactive maintenance should have been $109,200.
Although Supreme Court credited the husband with payments of $131,000 againstthe retroactive maintenance, we find merit in the wife's assertion that this includesamounts that predated the first action. The record reveals that $78,500 of those paymentswere made for various matters between June 2007 and September 2008, beforecommencement of the first matrimonial action or any request for an order regardingtemporary maintenance. Thus, the husband should have been permitted a credit of$52,500, resulting in retroactive maintenance owed of $56,700. We will remit forSupreme Court to fashion the manner in which this retroactive amount should be paid(i.e., length of time and amount of payments or lump sum) (see Harrington vHarrington, 300 AD2d 861, 864 [2002]; Alan D. Scheinkman, PracticeCommentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations LawC236B:39).
The remaining issues do not require extended discussion. Directing a party to make aformer spouse the beneficiary of a life insurance policy generally rests in the trial court'sdiscretion (see Murray vMurray, 101 AD3d 1320, 1325 [2012], lv dismissed 20 NY3d 1085[2013]; Holterman v Holterman, 307 AD2d at 443), and in light of, among otherthings, the fact that the wife will continue to receive one-half the husband's considerablestate pension if he predeceases her, Supreme Court did not abuse its discretion inrefusing to require the husband to make the wife the beneficiary of his life insurancepolicies. Supreme Court discussed in detail the wife's request for a further award ofcounsel fees, and its refusal to make an additional award was well within its discretion(see Vertucci v Vertucci, 103 AD3d at 1004-1005; Soles v Soles, 41 AD3d904, 908 [2007]). With regard to the protective order, the record contains evidence,credited by Supreme Court, of egregious conduct by the wife that included threateningand repeatedly harassing the husband. Thus, we will not disturb the order of protection.The remaining issues are either academic or without merit.[*4]
Peters, P.J., Stein and Egan Jr., JJ., concur.Ordered that the judgment is modified, on the law and the facts, without costs, by (1)awarding defendant a 50% share of plaintiff's monthly state pension payment, (2)awarding defendant a share—to be determined by Supreme Court—ofplaintiff's monthly military pension payment, (3) reducing future maintenance to zero,and (4) awarding retroactive maintenance to defendant of $56,700; matter remitted to theSupreme Court to determine the percentage of plaintiff's monthly military pension to beawarded to defendant, for submission of a qualified domestic relations order regardingthe state and military pensions, and for a determination regarding the method of paymentof retroactive maintenance; and, as so modified, affirmed.
Footnote 1: The wife was alsofound to have separate property of about $74,000, reflecting the value of an inheritancefrom her family.
Footnote 2: Since the wife receivedalmost $60,000 more than the husband in the distribution of the other primary maritalassets and she has been receiving reasonable monthly maintenance, the pensiondistribution need not be retroactive under the circumstances and the amounts shall applyprospectively from the date of this decision.