| DiPalma v DiPalma |
| 2013 NY Slip Op 08225 [112 AD3d 663] |
| December 11, 2013 |
| Appellate Division, Second Department |
| Jamie DiPalma, Respondent-Appellant, v MarkDiPalma, Appellant-Respondent. |
—[*1] Golden Hirschhorn LLP, Garden City, N.Y. (Alan K. Hirschhorn of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from (1) so much of an order of the Supreme Court, Richmond County (De Lizzo,Ct. Atty. Ref.), dated November 1, 2011, as, after a nonjury trial, granted the plaintiff'sapplication for an award of nondurational maintenance and a separate property credit inthe sum of $65,000 from the proceeds of the sale of the marital home, and (2) so much ofa judgment of the same court dated August 15, 2012, as, upon the order, directed thedefendant to pay the plaintiff nondurational maintenance in the sum of $1,500 per month,retroactive to the date of commencement of the action, and awarded the plaintiff aseparate property credit in the sum of $65,000 from the proceeds of the sale of themarital home, and the plaintiff cross-appeals from the order dated November 1, 2011.
Ordered that the appeal and the cross appeal from the order are dismissed, withoutcosts or disbursements; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff a separate property credit in the sum of $65,000 from the proceedsof the sale of the marital home; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements, and the order is modified accordingly.
The appeal and the cross appeal from the intermediate order must be dismissedbecause the right of direct appeal therefrom terminated with the entry of the judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised onthe appeal from the intermediate order are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]). Inaddition, the cross appeal must be dismissed as abandoned since the plaintiff did not raiseany argument in her brief with respect to her cross appeal (see Signorile v Signorile, 102AD3d 949, 950 [2013]; Delijani v Delijani, 100 AD3d 951, 952 [2012]).
The Supreme Court providently exercised its discretion in awarding the plaintiffnondurational maintenance in the sum of $1,500 per month. "[T]he amount and durationof maintenance is a matter committed to the sound discretion of the trial court, and everycase must be determined on its own unique facts" (Wortman v Wortman, 11 AD3d 604, 606 [2004]; see Kaufman v [*2]Kaufman, 102 AD3d 925, 925 [2013]). Thefactors to be considered in awarding maintenance include "the standard of living of theparties during the marriage, the income and property of the parties, the distribution ofmarital property, the duration of the marriage, the health of the parties, the present andfuture earning capacity of both parties, the ability of the party seeking maintenance tobecome self-supporting, and the reduced or lost lifetime earning capacity of the partyseeking maintenance" (Kret v Kret, 222 AD2d 412, 412 [1995]; seeDomestic Relations Law § 236 [B] [6] [a]). Where a party's account of his or herfinances is not believable, the court may impute a true or potential income higher thanthat alleged (see Wesche vWesche, 77 AD3d 921, 923 [2010]).
Following an extended trial, the Supreme Court, finding that the defendant was notcredible in his testimony with respect to his net worth, imputed an annual income of$84,000 to the defendant based on evidence indicating that, among other things, thedefendant received income from rental property. Based on the record before us, there isno basis to disturb the Supreme Court's credibility assessment, which is entitled to greatweight on appeal given the trial court's opportunity to view the demeanor of thewitnesses (see Levine vLevine, 37 AD3d 550, 551-552 [2007]; Lieberman v Lieberman, 21 AD3d 1004, 1005 [2005]).While the defendant argues that the Supreme Court failed to take into account, inter alia,the operating expenses of the rental property, he did not provide any evidentiary proof tothe court as to these expenses. Rather, the defendant was continually evasive regardinghis income and assets. Under these circumstances, the court providently exercised itsdiscretion in imputing income to the defendant in the sum of $84,000.
Furthermore, in considering the relevant factors for determining maintenance,including the length of the marriage, the plaintiff's limited employment history, hermedical expenses, and the likelihood that she will not be self-supporting in the future dueto her disabilities, the court providently exercised its discretion in awarding the plaintiffnondurational maintenance (seeMarino v Marino, 52 AD3d 585, 585 [2008]; Polizzano v Polizzano, 2AD3d 615 [2003]). Under the circumstances of this case, we reject the defendant'scontention that the plaintiff's maintenance should terminate once she reaches the age ofeligibility for Social Security retirement benefits (see Rabinovich v Shevchenko, 93 AD3d 774, 775 [2012];Rodriguez v Rodriguez, 70AD3d 799, 802 [2010]).
However, in determining the equitable distribution of the proceeds from theforeclosure sale of the marital home, the Supreme Court erred in awarding the plaintiffthe sum of $65,000 as reimbursement for allegedly separate property she contributed topay the down payment on the marital property. Since the plaintiff had previouslydeposited her separate property into a bank account titled to the defendant and hismother, those funds lost their separate character (see Golden v Golden, 98 AD3d 647, 650 [2012]; Loria v Loria, 46 AD3d768, 770 [2007]). Accordingly, we modify the judgment by deleting the provisionthat awarded the plaintiff a separate property credit from the proceeds of the maritalhome. Rivera, J.P., Skelos, Chambers and Hall, JJ., concur.