| Kessler v Kessler |
| 2013 NY Slip Op 07941 [111 AD3d 895] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Charles Kessler, Respondent, v Freda Kessler,Appellant. |
—[*1] Phyllis B. Levitas, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of a judgment of divorce of the Supreme Court, Westchester County(Connolly, J.), dated September 28, 2011, as, upon a decision of the same court enteredMarch 4, 2011, made after a nonjury trial, awarded the plaintiff a credit in the sum of$5,038.63 for 50% of the payments he made on the mortgage on the marital residence,awarded the plaintiff a credit in the sum of $28,330, representing 50% of the attorney'sfees and taxes the plaintiff paid with regard to the settlement of an unrelated action,determined that the mortgage on the marital residence was valid, declined to award hermaintenance, imputed income to her in the amount of $65,000 annually, directed her topay the plaintiff the sum of $2,705.76 to equalize their retirement accounts, awarded heronly 50% of the marital portion of the plaintiff's pension, failed to award her a credit forthe payment of $20,000 of premarital debt, failed to award her a credit in the sum of$47,875 for the past wages portion of the settlement of the unrelated action, failed todetermine that the plaintiff breached his fiduciary duty to her, failed to determine that theplaintiff dissipated marital assets, failed to direct an accounting, and equitably distributedthe parties' marital property equally.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff a credit in the sum of$28,330, representing 50% of the attorney's fees and taxes the plaintiff paid with regardto the settlement of an unrelated action, (2) by deleting the provision thereof imputingincome to the defendant in the amount of $65,000 annually and substituting therefor aprovision imputing income to the defendant in the amount of $30,000 annually, and (3)by deleting the provision thereof declining to award the defendant maintenance; as somodified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Westchester County, fora determination, in accordance herewith, of whether the defendant is entitled to an awardof maintenance, and, if so, how much, and, if necessary, the entry of an appropriateamended judgment thereafter.
Contrary to the defendant's contention, under the circumstances of this case, anaward of 50% of the parties' marital property to each of them constitutes an equitabledistribution of that [*2]property (see DomesticRelations Law § 236 [B] [1] [d] [3]; [5] [c]; Johnson v Chapin, 12 NY3d 461 [2009]; Caracciolo v Chodkowski, 90AD3d 801 [2011]). Further, the Supreme Court providently exercised its discretionin denying the defendant a credit for $20,000 of marital funds used to pay a premaritaldebt of the plaintiff. "The parties' choice of how to spend funds during the course of themarriage should ordinarily be respected," and the "[c]ourts should not second-guess theeconomic decisions made during the course of a marriage, but rather should equitablydistribute the assets and obligations remaining once the relationship is at an end" (Mahoney-Buntzman vBuntzman, 12 NY3d 415, 421 [2009]; see Caracciolo v Chodkowski, 90 AD3d 801 [2011]).
In determining a maintenance obligation, a court need not rely on a party's ownaccount of his or her finances (see Friedman v Friedman, 309 AD2d 830[2003]; Bell v Bell, 277 AD2d 411 [2000]), but may, in the exercise of itsconsiderable discretion (seeLago v Adrion, 93 AD3d 697 [2012]; Matter of Julianska v Majewski, 78 AD3d 1182 [2010]),impute income to a party based upon his or her employment history, future earningscapacity, and educational background (see Lago v Adrion, 93 AD3d 697 [2012]; Friedman vFriedman, 309 AD2d 830 [2003]), and what he or she is capable of earning, basedupon prevailing market conditions and prevailing salaries paid to individuals with theparty's credentials in his or her chosen field (see Lago v Adrion, 93 AD3d 697 [2012]; Matter of Gebaide vMcGoldrick, 74 AD3d 966 [2010]). Upon consideration of these factors, wereduce the amount of annual income imputed to the defendant from $65,000 to $30,000.
Based upon our modification of the amount of the defendant's imputed annualincome, the discrepancy between the parties' incomes will necessarily be larger thanpreviously calculated. Accordingly, we remit the matter to the Supreme Court,Westchester County, for a determination of whether the defendant is entitled to an awardof maintenance, based upon factors including the respective imputed income of thedefendant, as recalculated, and the plaintiff, the parties' pre-divorce standard of living,and the financial resources of each, considered separately, balancing the defendant'sneeds with the plaintiff's ability to pay (see Kover v Kover, 29 NY2d 408 [1972];O'Brien v O'Brien, 88AD3d 775 [2011]; Litvak vLitvak, 63 AD3d 691 [2009]).
Additionally, the Supreme Court should not have awarded the plaintiff a credit in thesum of $28,330, representing 50% of the attorney's fees paid in connection with theprosecution of an unrelated action which was settled in the defendant's favor, and the taxliability incurred on the settlement funds. Since a significant portion of the settlementfunds were ultimately determined to be marital property, the fees paid in connection withthe prosecution of that action, and the tax liability incurred on the settlements funds, weremarital debt (see Iarocci vIarocci, 98 AD3d 999, 1000 [2012]). Under these circumstances, it was animprovident exercise of the Supreme Court's discretion to award a credit to the plaintiffin connection with that settlement.
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Balkinand Roman, JJ., concur.
[Recalled and vacated, see 118 AD3d 946.]