| Zufall v Zufall |
| 2013 NY Slip Op 06142 [109 AD3d 1135] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| Katherine Zufall, Respondent, v Karl Zufall, Appellant.(Appeal No. 1.) |
—[*1] D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Robert C.Noonan, A.J.), entered March 8, 2012 in a divorce action. The judgment, among otherthings, ordered defendant to pay spousal maintenance to plaintiff.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating from the eighth decretal paragraph the language "until Plaintiffreaches the age of sixty-two" and substituting therefor the language "for a term of sevenyears from the date of commencement of the action, or until Plaintiff" and reducingdefendant's net child support obligation to $504.85 per month, and as modified thejudgment is affirmed without costs.
Memorandum: In appeal No. 1, defendant husband appeals from a judgment ofdivorce entered following a nonjury trial that, inter alia, awarded plaintiff wifemaintenance and child support and, in appeal No. 2 he appeals from an order directinghim to pay a portion of plaintiff's attorney fees. We reject defendant's contention inappeal No. 1 that Supreme Court erred in awarding maintenance to plaintiff in theamount of $150 per week, but we agree with defendant that the duration of maintenanceis excessive. We therefore modify the judgment in appeal No. 1 accordingly.
The parties were married for 21 years and have five children, one of whom isemancipated. During the marriage, plaintiff was primarily a homemaker, raising theparties' children while defendant worked as a correction officer. Shortly before thisaction was commenced, defendant retired at the age of 50 after 25 years of service withthe State of New York, leaving a job that paid him in excess of $90,000 annually. Henow receives pension benefits of $2,798 per month. Although able-bodied, defendantdoes not presently work. Plaintiff, on the other hand, has been determined by the SocialSecurity Administration to be 50% disabled, and she receives partial Social Securitydisability benefits of $622 per month plus workers' compensation benefits of $400 permonth. She also works 20 hours per week as a bartender, earning $5 per hour plus tips.Pursuant to the parties' prenuptial agreement, the validity of which is not challenged byplaintiff on appeal, the court did not award plaintiff any interest in defendant's pension orin the marital residence, which defendant obtained prior to the [*2]marriage, notwithstanding the fact that defendant paid themortgage on that property during the marriage with marital funds.
Considering the statutory factors enumerated in Domestic Relations Law § 236(B) (6) (a)—particularly, the length of the marriage; the income and property ofthe parties, including the marital property distributed by the court; and the present andfuture earning capacity of the parties—we conclude that the court did not abuse itsdiscretion in awarding weekly maintenance to plaintiff in the amount of $150 (see Almonte v Almonte, 108AD3d 1056, 1056-1057 [2013]; Rooney v Rooney [appeal No. 3], 92 AD3d1294, 1295 [2012], lv denied 19 NY3d 810 [2012]). With respect to the durationof maintenance, however, we agree with defendant that the court's award is excessiveinsofar as the court ordered defendant to pay maintenance until plaintiff turns 62, i.e., forapproximately 18 years. We conclude that a term of seven years from the date ofcommencement of the action "should afford the plaintiff a sufficient opportunity tobecome self-supporting" (Jaramillo v Jaramillo, 108 AD3d 651, 653 [2013]; see generally Smith v Smith,79 AD3d 1643, 1644 [2010]; Palestra v Palestra, 300 AD2d 288, 289[2002]).
We reject defendant's related contention in appeal No. 1 that the court erred in failingto order that maintenance shall cease if plaintiff cohabits with another man. Pursuant toDomestic Relations Law § 248, defendant may move to terminate maintenance onthe ground that plaintiff is "habitually living with another man and holding herself out ashis wife," and defendant cites no authority for the proposition that the court must includesuch a provision in the judgment of divorce.
Defendant also challenges the court's award of child support in appeal No. 1. Hisprimary contention in that regard is that the court erred in failing to deduct the amount hepays in maintenance from his gross income before calculating the parties' respective childsupport obligations. We reject that contention. "Where, as here, there [is] no provisionfor an adjustment of child support upon the termination of maintenance, . . .there [is] no basis for the court to deduct maintenance from [the] defendant's income indetermining the amount of child support" (Juhasz v Juhasz [appeal No. 2], 92AD3d 1209, 1211 [2012] [internal quotation marks omitted]; see Schmitt v Schmitt, 107AD3d 1529, 1529-1530 [2013]; Salvato v Salvato, 89 AD3d 1509, 1509-1510 [2011]).
Although not raised on appeal, we note that defendant's net child support obligationmust be reduced based on a mathematical error in the calculation thereof. The courtdetermined that, based on the parties' respective adjusted gross incomes, defendant mustpay child support of $807.48 per month for the three unemancipated children residingprimarily with plaintiff, while plaintiff must pay $302.63 per month for the oneunemancipated child residing with defendant. Although we agree that those are thecorrect child support awards for each party, the judgment inaccurately provides thatdefendant owes a net amount of $540.85 per month in child support. The correct amountis $504.85, and we therefore further modify the judgment accordingly. We rejectdefendant's remaining challenges in appeal No. 1 to the child support award.
Defendant further contends in appeal No. 1 that the court erred in awarding plaintiffhalf of the funds in his deferred compensation account. According to defendant, the courtimproperly presumed that all of the funds in that account accumulated during themarriage, and he therefore contends that we should remit the matter to Supreme Court todetermine the "marital share" of that account as distinguished from his "separate propertyshare." There is no merit to that contention. Pursuant to a statutory presumption, "allproperty, unless clearly separate, is deemed marital property," and the burden rests withthe titled spouse to rebut that presumption (DeJesus v DeJesus, 90 NY2d 643,652 [1997]; see Fields vFields, 65 AD3d 297, 308 [2009], affd 15 NY3d 158, 162 [2010],rearg denied 15 NY3d 819 [2010]; see also Domestic Relations Law§ 236 [B] [1] [c], [d]). "The party [*3]seeking torebut that presumption must adequately trace the source of the funds" (Pullman vPullman, 176 AD2d 113, 114 [1991], appeal after remand 200 AD2d 429[1994] , lv dismissed 89 NY2d 914 [1996]); otherwise, the court may properlytreat the funds as marital property (see Sarafian v Sarafian, 140 AD2d 801,804-805 [1988]). Here, it does not appear from the record that defendant offered anyevidence establishing the amounts he contributed to his deferred compensation accountbefore or during the marriage. Thus, he failed to meet his burden of establishing that anyof the funds in that account are separate property, and we therefore conclude that thecourt properly presumed that the entire account constitutes marital property subject toequitable distribution.
Finally, we reject defendant's contention in appeal No. 2 that the court abused itsdiscretion in ordering him to pay a portion of plaintiff's attorney fees (see Gallagher v Gallagher, 93AD3d 1311, 1314 [2012], lv dismissed in part and denied in part 19 NY3d1022 [2012]). Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.