| Alecca v Alecca |
| 2013 NY Slip Op 07797 [111 AD3d 1127] |
| November 21, 2013 |
| Appellate Division, Third Department |
| Anne Alecca, Respondent, v Christopher Alecca,Appellant. |
—[*1] Blatchley & Simonson, PC, New Paltz (Bruce D. Blatchley of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (McGinty, J.), enteredNovember 21, 2012 in Ulster County, ordering, among other things, equitabledistribution of the parties' marital property, upon a decision of the court.
The parties were married in 1997 and they have two children (born in 1999 and2004); plaintiff (hereinafter the wife) commenced this action for divorce in 2011. Afterthe parties entered into an oral stipulation resolving child support and custody, as well ascertain aspects of equitable distribution, a nonjury trial was held on the remainingequitable distribution issues and maintenance. Supreme Court, among other things,ordered defendant (hereinafter the husband) to pay the wife $91,750, representing half ofthe stipulated value of the marital residence, $10,000, representing half of a 401(k)account, and $8,500, representing half of a joint bank account. Supreme Court alsoordered the husband to pay the wife half of the amount in a deferred compensationaccount, maintenance of $292 per week until she turns 62 and $5,000 in counsel fees.The husband appeals.
We cannot agree with the husband's contention that Supreme Court erred in failing togive him credit for his separate property contributions to the acquisition of the maritalresidence. Although the residence was purchased prior to the marriage and the husband'sseparate funds were used for the down payment and premarital mortgage payments, thehusband conveyed the property to the parties jointly in 1998, creating a presumption thatit then became marital property in its entirety (see Murray v Murray, 101 AD3d 1320, 1321 [2012], lvdismissed 20 NY3d 1085 [2013]; Campfield v Campfield, 95 AD3d 1429, 1430 [2012],lv dismissed 20 NY3d [*2]914 [2012], lvdenied 21 NY3d 857 [2013]). Under these circumstances, whether to grant thehusband a credit for the contribution of separate property to the acquisition of this maritalasset was within Supreme Court's discretion (see Vertucci v Vertucci, 103 AD3d 999, 1003 [2013];Murray v Murray, 101 AD3d at 1321; see also Lurie v Lurie, 94 AD3d 1376, 1378 [2012]), andwe find no abuse of that discretion here.
Nor do we find any basis to disturb Supreme Court's distribution of $8,500 as thewife's share of the proceeds from the parties' joint bank account. The evidenceestablished that the husband liquidated the account and transferred the proceeds to one hecontrolled shortly after he left the marital residence, and he offered no evidence tosupport his claim that he used the money to pay marital expenses. Instead, the evidencesupports the conclusion that he used the money to pay for personal expenses, includinginterim fees he was ordered to pay to the wife's counsel (see Quinn v Quinn, 61 AD3d1067, 1070 [2009]; Altieriv Altieri, 35 AD3d 1093, 1095 [2006]; compare Altomer v Altomer,300 AD2d 927, 928 [2002]). We agree with the husband, however, that the distributionof $10,000 from his premarital 401(k) account was improper in light of his testimony,which was neither disputed by the wife nor expressly discounted by the court, that it wasfunded solely with separate property and never converted to marital property (see Nolan v Nolan, 104 AD3d1102, 1106 [2013]; Blay vBlay, 51 AD3d 1189, 1191 [2008]; Shen v Shen, 21 AD3d 1078, 1079 [2005]). Likewise, thatpart of the judgment directing distribution of a nonexistent deferred compensationaccount should be stricken.
As for the husband's contention that the maintenance award is excessive in durationand amount, it is well settled that these determinations are within the sound discretion ofSupreme Court so long as the court considers the statutory factors and the parties'predivorce standard of living (see Cornish v Eraca-Cornish, 107 AD3d 1322, 1324[2013]; Murray v Murray, 101 AD3d at 1322; Schwalb v Schwalb, 50 AD3d1206, 1210 [2008]). Here, the husband was 47 years old at the time of the divorceand had been continuously employed as a firefighter for the City of Kingston since 1992.The wife was 43 years old at the time of the divorce and had intermittently worked parttime until 2007, when she injured her wrist. She was determined to be disabled by theSocial Security Administration in connection with her wrist injury and her other seriousmedical issues. Prior to her disability, her income varied from approximately $7,000 to$16,000 per year. Further, she has been and will continue to be primarily responsible forthe children, who have special needs. Contrary to the husband's claim, Supreme Court'sconclusions that the wife is unable to work and unlikely to find work enabling her tobecome self-sufficient are amply supported by the record. Moreover, although thehusband claims that the maintenance award will impoverish him, he points only to hisbase salary to make this argument and ignores the overtime he has historically worked.The record supports Supreme Court's conclusion that the husband has an annual incomeof $75,000, at the least. As Supreme Court considered the relevant statutory factors indetermining the appropriate amount and duration of maintenance, and its determinationis supported by the record, we find no basis to disturb its exercise of discretion (see Settle v McCoy, 108 AD3d810, 812 [2013]; Quarty vQuarty, 96 AD3d 1274, 1277 [2012]; Harrington v Harrington, 93 AD3d 1092, 1094 [2012]).
The husband next contends that the child support award must be remitted forrecalculation based on the failure of the parties to address the impact of maintenance onchild support. The husband concedes, however, that this issue was not preserved forreview by timely objection or motion in Supreme Court (see Severing v Severing, 97AD3d 956, 957 [2012]; Dudla v Dudla, 304 AD2d 1009, 1010 [2003]; compare St. Louis v St. Louis,86 AD3d 706, 708 [2011]). In any event, the statute relied on by the husband,Domestic Relations Law § 240 (1-b) (b) (5) (vii) (C), is inapplicable. That statutemandates that maintenance be deducted from income for child support purposes wherethe order provides for an adjustment of child support once maintenance terminates(see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). Here,maintenance will outlast child support and, therefore, the statutory deduction is notrequired (see Fendsack v Fendsack, 290 AD2d 682, 684 [2002]; Huber vHuber, 229 AD2d 904, 905 [1996]).
With respect to the award of counsel fees, the husband does not challenge thereasonableness of the charges set forth in the bills submitted by the wife's counsel, butagain claims that his financial condition is desperate and he cannot afford to pay them.As stated above, however, Supreme Court's findings regarding the parties' respectivefinancial circumstances are supported by the record and, considering the totality ofcircumstances, we find no abuse of discretion in the award of counsel fees (see Williams v Williams, 99AD3d 1094, 1097 [2012]; O'Connor v O'Connor, 91 AD3d 1107, 1109 [2012]; Dow v Dow, 80 AD3d848, 849 [2011]). Nevertheless, we agree with the husband that the custody awardshould be modified by adding the parties' agreement that they share holidays andvacations as the parties agree. We further agree that, pursuant to the stipulation, thewife's counsel is responsible for preparing the qualified domestic relations orderdistributing the husband's pension, and the judgment should be amended accordingly toreflect this. The husband's remaining contentions, to the extent that they have beenpreserved for our review, have been considered and determined to be without merit.
Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is modified, on thelaw, without costs, by (1) modifying the visitation award so as to include the agreementthat the parties share holidays and vacations as agreed upon by the parties, (2) orderingplaintiff to submit a qualified domestic relations order to Supreme Court, (3) vacating somuch thereof as distributed the 401(k) account, and (4) vacating so much thereof asdistributed a deferred compensation account, and, as so modified, affirmed.