| Alleva v Alleva |
| 2013 NY Slip Op 08038 [112 AD3d 567] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Debra Alleva, Respondent-Appellant, v RobertAlleva, Appellant-Respondent. |
—[*1] Wand, Powers & Goody, LLP, Huntington, N.Y. (Chad M. Powers of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Suffolk County (LaSalle, J.),dated December 14, 2011, as, upon a decision of the same court dated August 1, 2011,made after a nonjury trial, awarded her maintenance in the sum of only $750 per week,failed to require the defendant to maintain health insurance for her, failed to require thedefendant to maintain a policy of life insurance to secure his maintenance obligations,failed to require the defendant to elect a pre-retirement death benefit and/or joint survivoroption with respect to certain pension plans, allocated certain marital credit card debtequally between the parties, allocated the marital assets equally between the parties,awarded her an attorney's fee in the sum of only $10,000 and directed the payment of thatfee within 18 months after the date of service of the decision, and failed to direct therelease to her of certain monies from an escrow account held by the defendant's formerattorney, and the defendant cross-appeals, as limited by his brief, from so much of thesame judgment as awarded the plaintiff maintenance for a period of 15 years.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff maintenance for a period of15 years, and substituting therefor a provision awarding the plaintiff maintenance untilshe is eligible for full Social Security benefits or remarries, and (2) by adding a provisionthereto directing the defendant to maintain a life insurance policy for the benefit of theplaintiff until payment of maintenance is completed in an amount sufficient to secure themaintenance obligation; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, with costs to the defendant, and the matter is remitted to theSupreme Court, Suffolk County, for a determination as to the distribution of the funds inthe escrow account held by the defendant's former attorney, and for the entry of anappropriate amended judgment thereafter.
The "amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court, and every case must be determined on its own unique facts"(Wortman v Wortman, 11AD3d 604, 606 [2004]; seeMorales v Inzerra, 98 AD3d 484 [2012]; Farag v Farag, 4 AD3d 502 [2004]). The factors to beconsidered in awarding maintenance include "the standard of living of the parties duringthe marriage, the income and property of the parties, the distribution of marital property,the [*2]duration of the marriage, the health of the parties,the present and future earning capacity of both parties, the ability of the party seekingmaintenance to become self-supporting, and the reduced or lost lifetime earning capacityof the party seeking maintenance" (Kret v Kret, 222 AD2d 412, 412 [1995];see Farag v Farag, 4 AD3d at 503; Wilson v Wilson, 308 AD2d 583[2003]). Contrary to the plaintiff's contention, under the circumstances of this case, theSupreme Court providently exercised its discretion in awarding her maintenance in thesum of $750 per week. However, as the defendant correctly contends, the Supreme Courtshould have awarded the plaintiff maintenance only until she becomes eligible for fullSocial Security retirement benefits or remarries (see Penna v Penna, 29 AD3d 970, 972 [2006]; see also Lorenz v Lorenz, 63AD3d 1361, 1363-1364 [2009]; Taylor v Taylor, 300 AD2d 298 [2002]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in declining to direct the defendant to maintain health insurance for theplaintiff (see Domestic Relations Law § 236 [B] [8] [a]).
As the plaintiff correctly contends, it is appropriate in this case to require thedefendant to maintain life insurance on her behalf to secure his maintenance obligation(see id.; Hartog v Hartog, 85 NY2d 36, 50 [1995]; Miceli v Miceli, 78 AD3d1023, 1026 [2010]; Baronv Baron, 71 AD3d 807, 810 [2010]).
Contrary to the plaintiff's contention, since the record contains no specific evidenceregarding pre-retirement death benefits available under the defendant's pension plans orany option for joint and survivor benefits, the Supreme Court providently exercised itsdiscretion in declining to award her a share of any pre-retirement or joint and survivorpension benefits (see Leichtnerv Leichtner, 18 AD3d 446, 447 [2005]; LeVigne v LeVigne, 220 AD2d561, 562 [1995]).
The Supreme Court providently exercised its discretion in equally allocatingresponsibility for marital debt, including certain credit card debt incurred during thependency of this action. In general, financial obligations incurred during the marriagewhich are not solely the responsibility of one party should be shared equally by theparties (see Mahoney-Buntzmanv Buntzman, 12 NY3d 415, 421 [2009]; Bogdan v Bogdan, 260 AD2d521, 522 [1999]). Here, the plaintiff argues that the defendant should be solelyresponsible for certain credit card debt that the plaintiff incurred during the pendency ofthis action for, inter alia, the support of herself and the parties' two emancipated children.However, the plaintiff does not assert that the defendant failed to comply with a pendentelite order directing him to pay maintenance and expenses of the children. Under thesecircumstances, the plaintiff failed to show that the debt should be borne solely by thedefendant (see Mosso vMosso, 84 AD3d 757, 760 [2011]; see also Caracciolo v Chodkowski, 90 AD3d 801, 803[2011]).
The plaintiff contends that the Supreme Court erred in ordering the net proceeds ofthe sale of the marital home to be divided equally in light of the allegedly wastefuldissipation of assets by the defendant, who allegedly failed to maintain the marital homeduring the pendency of this action. However, the record does not show that the defendantwas responsible for a diminution in the value of the marital home. Thus, there is no basisfor disturbing the equitable distribution award in this regard (see Scher v Scher, 91 AD3d842, 844 [2012]; Graves v Graves, 307 AD2d 1022, 1023 [2003]).
In a matrimonial action, an award of an attorney's fee should be based, inter alia, onthe relative financial circumstances of the parties, the relative merit of their positions, andthe tactics of a party in unnecessarily prolonging the litigation (see DomesticRelations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881[1987]; Levy v Levy, 4AD3d 398, 398-399 [2004]; Gallousis v Gallousis, 303 AD2d 363, 364[2003]; Krutyansky v Krutyansky, 289 AD2d 299, 300 [2001]). Contrary to theplaintiff's contention, under the circumstances of this case, the Supreme Courtprovidently exercised its discretion in awarding the plaintiff the sum of $10,000 as anattorney's fee, payable within 18 months after the date of service of the decision (see Armstrong v Armstrong,72 AD3d 1409, 1416 [2010]; Griggs v Griggs, 44 AD3d 710, 714 [2007]).
The plaintiff correctly asserts that the Supreme Court failed to direct the distribution[*3]of certain monies held in an escrow account held bythe defendant's former attorney. As the record is not sufficient for this Court to make adetermination as to the proper disposition of those funds, the matter must be remitted tothe Supreme Court, Suffolk County, for a determination in this regard and the entry of anappropriate amended judgment thereafter. Mastro, J.P., Leventhal, Lott and Roman, JJ.,concur.