| Settle v McCoy |
| 2013 NY Slip Op 05020 [108 AD3d 810] |
| July 3, 2013 |
| Appellate Division, Third Department |
| Peter Settle, Respondent, v Virginia McCoy,Appellant. |
—[*1] Bixby, Crable & Stiglmeir, PLLC, Albany (Bess Livaditis of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Drago, J.), enteredNovember 15, 2011 in Schenectady County, ordering, among other things, equitabledistribution of the parties' marital property, upon a decision of the court.
The parties were married in 1982 and have two children, a daughter (born in 1988)and a son (born in 1992). Plaintiff (hereinafter the husband) commenced the instantdivorce action in November 2003 and defendant (hereinafter the wife) counterclaimedfor a divorce and related relief. The parties agreed to a bifurcated trial, after which alengthy custody trial ensued and the husband was ultimately granted sole custody of thechildren pursuant to an August 2006 order. In lieu of a trial on the remaining issues, theparties then agreed that they would submit exhibits, affidavits and memoranda of law.Supreme Court thereafter issued an August 2007 order (later supplemented by a July2011 order) which, among other things, resolved the issues of equitable distribution,maintenance and child support. Upon cross appeals from that order, this Court held that,inasmuch as Supreme Court had yet to issue a judgment of divorce, the purporteddivision of marital property was ineffective (63 AD3d 1215 [2009]). Accordingly, theorder was reversed and the matter was remitted to Supreme Court. Supreme Courtthereafter granted a judgment of divorce in favor of the wife that incorporated, asrelevant here, its August 2007 and July 2011 orders addressing the financial issues. Thewife now appeals.
The wife contends that Supreme Court's award of maintenance—in the amountof $1,600 per month until she reaches the age of 62 or begins to collect her portion of thehusband's [*2]pension—is inadequate in bothamount and duration and requests an award of $3,900 per month retroactive toNovember 1, 2005 and continuing until she begins to collect her share of the husband'spension. While the amount and duration of maintenance are generally left to the sounddiscretion of the trial court in accordance with its consideration of the statutory factors,as well as the parties' predivorce standard of living (see Domestic Relations Law§ 236 [B] [6] [a]; Biagiotti v Biagiotti, 97 AD3d 941, 942 [2012]; Scarpace v Scarpace, 84 AD3d1537, 1537 [2011]), this Court's authority is equally broad in resolving questions ofmaintenance (see McCaffrey v McCaffrey, 107 AD3d 1106, 1108 [2013]).
Here, Supreme Court properly took into account the wife's absence from theworkforce for an extended period of time to care for the parties' children—both ofwhom have special needs—which resulted in a significant reduction in her lifetimeearning capacity. However, the court also recognized her present and future incomepotential, that the husband had been awarded sole custody of the parties' children andthat the wife received approximately $800,000 in marital assets, including the maritalhome, which was unencumbered. Inasmuch as Supreme Court considered the appropriatestatutory factors and its decision is supported by the record, we cannot conclude that thecourt abused its discretion in refusing to award defendant a greater amount ofmaintenance (see Murray vMurray, 101 AD3d 1320, 1322 [2012], lv dismissed 20 NY3d 1085[2013]; Williams vWilliams, 99 AD3d 1094, 1096 [2012]).[FN1]
However, we do find merit to the wife's claim that Supreme Court should not havedirected that maintenance terminate upon the earlier of when she reaches 62years of age or when she begins to collect her portion of the husband's pension, as thiswould potentially leave a gap in her receipt of financial support in the event that thehusband elects to defer his retirement beyond the age of 65.[FN2]Even assuming that Supreme Court anticipated that the wife would becomeself-supporting to some extent by the time she reached the age of 62, in light of thesignificant disparity in the parties' incomes and the court's express finding that it wasdoubtful that she would ever command a salary that would afford her the standard ofliving she had enjoyed during the marriage, we find it appropriate to modify the court'sorder to extend the award of maintenance until the wife begins to collect Social Securityretirement benefits or her portion of the husband's pension, whichever occurs first (see Ndulo v Ndulo, 66 AD3d1263, 1265-1266 [2009]).
Furthermore, the award of maintenance should have been made retroactive toNovember 2005, "taking into account any amount of temporary maintenance which hasbeen paid" during [*3]the relevant time period since thatdate (Domestic Relations Law § 236 [B] [6] [a]).[FN3]We therefore remit to Supreme Court to determine the retroactive amount owed andwhether such amount "shall be paid in one sum or periodic sums" (Domestic RelationsLaw § 236 [B] [6] [a]). In addition, while Supreme Court did not address thewife's request that she be named the beneficiary of the husband's life insurance policy,we find it appropriate to direct him to maintain a policy of life insurance, with the wife asbeneficiary thereof, in an amount necessary to satisfy his maintenance obligation untilsuch obligation terminates (see Domestic Relations Law § 236 [B] [8] [a];Mairs v Mairs, 61 AD3d1204, 1211 [2009]).[FN4]
We turn next to Supreme Court's child support award. We reject the wife'scontention that Supreme Court's calculation of her child support obligation of $51 perweek was excessive. The court was permitted, in its discretion, to impute income to thewife (see Domestic Relations Law § 240 [1-b] [b] [5] [v]; Sadaghiani v Ghayoori, 83AD3d 1309, 1312 [2011]; Matter of Kasabian v Chichester, 72 AD3d 1141, 1141[2010], lv denied 15 NY3d 703 [2010]), and the record supports the court'sdetermination that she was capable of earning $12,090 per year at her currentemployment.[FN5]Moreover, in view of the maintenance award, the wife's contentions that the childsupport order would reduce her income below the poverty income guidelines and,therefore, that she should not be required to pay her pro rata share of the children's healthcare costs, are unpersuasive.
We are likewise unpersuaded by the assertion that Supreme Court erred in failing todirect the husband to pay what the wife characterizes as child support arrears. Pursuant toa voluntary arrangement between the parties in December 2005, the husband agreed topay the wife $1,860 per month—which the parties "agreed not to characterize. . . as being spousal support or child support"—"without prejudice toeither party seeking credits for payments made during the pendency of [the] action."While the record demonstrates that the husband did not make such payments to the wifefrom March 2006 to August 2006, we cannot say that Supreme Court abused itsdiscretion in relieving him from that obligation in light of its finding that he was"primarily responsible for all of the children's extensive needs during the pendency of[the] protracted litigation." However, we agree with the wife that, absent an agreement,Supreme Court erred in directing her to pay a portion of the daughter's college expensesincurred after the [*4]age of 21 (see DomesticRelations Law § 240 [1-b] [b] [2]; compare Shapiro v Shapiro, 91 AD3d 1094, 1095-1096[2012]).
Finally, because Supreme Court carefully considered the circumstances of the caseand of the respective parties—including the generous equitable distribution awardto the wife—we cannot say that it abused its discretion in denying her request forcounsel fees, despite the disparity between the parties' incomes (see Keil v Keil, 85 AD3d1233, 1238 [2011]; Matterof Yarinsky v Yarinsky, 59 AD3d 828, 831 [2009], lv denied 12 NY3d712 [2009]; Soles v Soles,41 AD3d 904, 908 [2007]). We have considered the parties' remaining contentionsand, to the extent they are properly before us, find them to be without merit.[FN6]
Peters, P.J., Lahtinen 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)directed plaintiff to pay maintenance to defendant until she reaches 62 years of age orbegins to collect a portion of plaintiff's pension, whichever comes first, (2) denieddefendant's request for retroactive maintenance and (3) directed defendant to pay a prorata share of the daughter's college expenses incurred past the age of 21; plaintiff isdirected to (1) pay maintenance to defendant retroactive to November 2005 and untildefendant begins to collect Social Security retirement benefits or her portion of plaintiff'spension, whichever occurs first, and (2) maintain a policy of life insurance, withdefendant as beneficiary, in an amount necessary to satisfy his maintenance obligationuntil such obligation terminates, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Although the partiesagree that Supreme Court made two minor factual errors with regard to classifyingcertain property as marital and failing to credit the wife for certain marital assetstransferred to the husband during the proceedings, these errors do not significantly alterthe relative pro rata shares of marital assets so as to affect the propriety of themaintenance award or other financial terms of the judgment.
Footnote 2: There is an agedifference between the parties of approximately three years.
Footnote 3: While an award ofmaintenance must be made effective as of the date of the application therefor (seeDomestic Relations Law § 236 [B] [6] [a]; Scarpace v Scarpace, 84 AD3dat 1539; McAuliffe vMcAuliffe, 70 AD3d 1129, 1135 [2010]) and the application for maintenancewas first included in the wife's answer and counterclaim in May 2005, she acknowledgesthat the husband provided adequate financial support through October 2005.
Footnote 4: The record reflects thatthe husband maintained a policy of life insurance, although the amount of such insurancewas not established.
Footnote 5: Although SupremeCourt did not make an express finding that the wife had intentionally reduced her incometo avoid her obligation to pay child support, the court found it "questionable that shecould not have re-entered the workforce years ago" despite her parenting responsibilities.
Footnote 6: We note that, inasmuchas the husband did not cross-appeal from Supreme Court's judgment, we do not reach hischallenges to certain provisions of that judgment.