| Kim v Schiller |
| 2013 NY Slip Op 08229 [112 AD3d 671] |
| December 11, 2013 |
| Appellate Division, Second Department |
| Mihea Kim, Respondent, v Bradford C. Schiller,Appellant. |
—[*1] Rogers McCarron & Habas, P.C., Orangeburg, N.Y. (Lawrence B. McCarron andGregg L. Verrilli of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of (1) an order of the Supreme Court, Rockland County (Alfieri, Jr.,J.), dated February 15, 2012, as granted that branch of the plaintiff's cross motion whichwas for an award of an attorney's fee in the sum of $5,000, and (2) a judgment of thesame court dated August 13, 2012, as, upon a decision of the same court dated June 25,2012, made after a nonjury trial, (a) awarded the plaintiff the sum of $247,000 as theplaintiff's portion of the defendant's enhanced earning capacity, (b) failed to award thedefendant a credit in the sum of $20,000 with respect to funds from his separate propertythat he used to repay the plaintiff's student loan debt, (c) failed to award him a maritalshare of the plaintiff's Vanguard and Fidelity retirement accounts, (d) awarded theplaintiff possession and ownership of the former marital residence and awarded thedefendant a credit in the sum of only $60,000 as his share of the equity in the residence,(e) failed to equitably distribute the parties' household furnishings, (f) awarded theplaintiff the sum of $662 as the plaintiff's share of the defendant's Charles Schwabaccount, (g) awarded the plaintiff child support for the parties' two children in the sum of$3,774 per month, (h) failed to award the defendant a credit for voluntary payments hemade to the plaintiff from September 13, 2010, the date that the action was commenced,until the issuance of an order dated June 24, 2011, awarding pendente lite relief to theplaintiff retroactive to May 5, 2011, (i) awarded the plaintiff, pendente lite, carrying costson the former marital residence without modifying the child support awarded to theplaintiff, (j) failed to direct that the defendant is to receive a credit towards his childsupport obligation for any sum he contributes to room and board expenses for either orboth of the parties' children during any time they attend college away from home, (k)failed to award the defendant dependent tax exemptions, allowances, and deductions forthe parties' children, (l) awarded the plaintiff pendente lite maintenance arrears in thesum of $30,594, (m) directed the defendant to pay 50% of certain additional expensesincurred on behalf of the children, (n) failed to award the defendant an attorney's fee, (o)awarded the plaintiff the sum of $5,000 for an expert's fee, (p) directed the defendant topay 50% of, inter alia, all health care expenses of the parties' children not covered byinsurance, and (q) failed to sanction the [*2]plaintiff'sattorney for violating Rules of Professional Conduct (22 NYCRR 1200.0) rules 3.3 and4.1 and CPLR 3120 (3).
Ordered that the order dated February 15, 2012, is affirmed insofar as appealed from,without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by reducing the award to the plaintiff for her equitable share of thedefendant's enhanced earning capacity from the sum of $247,000 to the sum of $148,200,(2) by adding a provision thereto awarding the defendant a credit in the sum of $20,000with respect to funds from his separate property that he used to repay the plaintiff'sstudent loan debt, (3) by adding a provision thereto directing that the plaintiff's Vanguardand Fidelity retirement accounts be distributed pursuant to a Qualified DomesticRelations Order upon the earlier of the parties' retirement or the liquidation of theaccounts, (4) by increasing the award to the defendant of the credit for his equitableinterest in the former marital residence from the sum of $60,000 to the sum of $60,470,(5) by deleting the provision thereof awarding the plaintiff the sum of $662 as herequitable share of the defendant's Charles Schwab account, (6) by adding a provisionthereto awarding the defendant a credit in the sum of $3,400 for voluntary child supportpayments he made from May 5, 2011, the date that the plaintiff moved for a pendente liteaward of child support until the court issued the order dated June 24, 2011, (7) by addinga provision thereto directing that the defendant's child support obligation shall bedecreased by the amount of any college room and board expenses he incurs while eitherof the parties' children attends college, (8) by adding a provision thereto directing that thedefendant shall be permitted to claim dependent tax exemptions, allowances, anddeductions for the parties' eldest child, that the plaintiff shall be permitted to claimdependent tax exemptions, allowances, and deductions for the parties' youngest child,that upon the emancipation of the parties' eldest child, the parties shall alternate, on anannual basis, the right to claim dependent tax exemptions, allowances, and deductionsfor the parties' youngest child until that child's emancipation, and directing the plaintiff toexecute the appropriate Internal Revenue Service forms, (9) by deleting the provisionthereof directing the defendant to pay 50% of certain additional expenses incurred onbehalf of the children, including the cost of the children's furniture, trips to South Korea,and a sweet sixteen birthday party, as well as the cost of eyeglasses, contact lenses,summer camp, and therapy, and substituting therefor a provision awarding the plaintiffthe sum of $895.50, representing the defendant's 50% share of in-network and reasonableunreimbursed medical expenses and tutoring expenses incurred by the plaintiff on behalfof the parties' children during the pendency of the action, (10) by reducing the award tothe plaintiff for the defendant's pendente lite "maintenance arrears" from the sum of$30,594 to the sum of $19,800, representing $13,200 in pendente lite maintenancearrears and $6,600 in pendente lite arrears for the carrying charges for the former maritalresidence, (11) by deleting the provision thereof awarding the plaintiff the sum of $5,000for an expert's fee, and (12) by adding to the provision thereof directing the defendant topay 50% of, inter alia, all health care expenses of the parties' children not covered byinsurance, the word "reasonable" before the words "health care expenses not covered byinsurance"; as so modified, the judgment is affirmed insofar as appealed from, withoutcosts or disbursements, and the matter is remitted to the Supreme Court, RocklandCounty, for the entry of an amended judgment.
In this matrimonial action, the Supreme Court properly determined that the plaintiffwas entitled to a share of the defendant's enhanced earning capacity. Although theplaintiff did not make direct financial contributions to the defendant's attainment of hismedical degree and license, she made substantial indirect contributions, as the plaintiffwas supportive of the defendant's attainment of his degree and the advancement of hiscareer. Moreover, the plaintiff worked full-time throughout the marriage, except forthose periods of time when she was on maternity leave or collecting disability benefitsdue to her chronic lupus disease. In addition, the plaintiff contributed her earnings to thefamily, bore two children for whom she had primary caretaking responsibility, cookedthe family's meals, and participated in the housekeeping (see Holterman v Holterman, 3NY3d 1, 8-9 [2004]; McSparron v McSparron, 87 NY2d 275 [1995]; Huffman v Huffman, 84 AD3d875, 877 [2011]; Jayaram vJayaram, 62 AD3d 951, 953 [2009]; Cozza v Colangelo, 298 AD2d 914[2002]). However, under the circumstances of this case, where the defendant madeaccommodations for the sake of the plaintiff's [*3]careerand her desire to remain near her family, as well as in light of the defendant's financialcontributions during his tenure at medical school, we reduce the award to the plaintiff ofthe marital portion of the defendant's enhanced earning capacity from 50% to 30%,thereby reducing the plaintiff's award from $247,000 to $148,200.
We agree with the defendant that he is entitled to a credit in the sum of $20,000 withrespect to funds from his separate property that he used during the marriage to repay theplaintiff's student loan debt (seeSotnik v Zavilyansky, 101 AD3d 1102, 1104 [2012]; Khan v Ahmed, 98 AD3d471, 472-473 [2012]; cf.Zaretsky v Zaretsky, 66 AD3d 885, 887 [2009]; DiBlasi v DiBlasi, 48 AD3d403, 405 [2008]).
In the decision on which the judgment was based, the Supreme Court concluded thatthe plaintiff's retirement accounts were to be equitably distributed to the parties pursuantto a Qualified Domestic Relations Order upon the earlier of parties' retirement or theliquidation of the accounts. However, the judgment omitted mention of an award of anycredit to the defendant with respect to the plaintiff's retirement accounts. "Where there isan inconsistency between a judgment and the decision upon which it is based, thedecision controls" (Verdrager v Verdrager, 230 AD2d 786, 787 [1996]; see Berry v Williams, 87AD3d 958, 961 [2011]; Matter of Jimmy D., 63 AD3d 737, 738 [2009],affd 15 NY3d 417 [2010]). "Further, such an inconsistency may be correctedeither by way of a motion for resettlement or on appeal" (Verdrager v Verdrager,230 AD2d at 788; see CPLR 2221, 5019 [a]; Matter of Jimmy D., 63AD3d at 738). Accordingly, we modify the judgment to direct that the plaintiff'sretirement accounts shall be distributed to the parties pursuant to a Qualified DomesticRelations Order, pursuant to the terms and conditions described by the Supreme Court inits decision.
This Court is empowered to "cure any 'mistake, defect or irregularity' in a judgment,including mathematical errors in calculation" (Berry v Williams, 87 AD3d at961, quoting CPLR 5019 [a]). Here, although the parties stipulated that the formermarital residence had a value of $340,000, and the evidence established that the principalbalance remaining on the mortgage loan referable to the former marital residence was$219,060, the court awarded a credit to the defendant in the sum of $60,000, rather than$60,470, as his share of the equity in the former marital residence. Since $340,000 minus$219,060 is equal to $120,940, and 50% of $120,940 is $60,470, we modify thejudgment to award the defendant a credit in the sum of $60,470 as his equitable share ofthe value of the former marital residence.
The Supreme Court erred in awarding the plaintiff the sum of $662 as her share of amoney market account held by the defendant with Charles Schwab, since no evidenceregarding the provenance of this account was adduced at the trial. The only evidence thatwas before the Supreme Court with respect to this account was its inclusion in thedefendant's net worth statement.
The plaintiff was entitled to an award of pendente lite relief retroactive to May 5,2011, the date that she moved for pendente lite relief (see Fredericks v Fredericks, 85 AD3d 1107, 1109 [2011]),through June 24, 2011, the date that the Supreme Court issued an order awardingpendente lite relief to her. The defendant, however, is entitled to a credit for thevoluntary child support payments he made from May 5, 2011, through June 24, 2011,that were in addition to the court-ordered pendente lite child support payments, but onlyto the extent of the pendente lite award actually made to the plaintiff (see Heiny v Heiny, 74 AD3d1284, 1288 [2010]; Verdrager v Verdrager, 230 AD2d at 788-789;Ferraro v Ferraro, 257 AD2d 598, 599 [1999]). Since the parties agree that thedefendant was voluntarily paying the plaintiff the sum of $2,600 in child support eachmonth at the time that the plaintiff's motion for pendente lite relief was determined, thedefendant expended the total sum of $5,200 pursuant to two payments made betweenMay 5, 2011, and June 24, 2011. For the seven-week period between May 5, 2011, andJune 24, 2011, the defendant made four additional biweekly payments of $850, totaling$3,400. Since the pendente lite award actually made to the plaintiff was less than the$5,200 that the defendant made in voluntary child support payments from May 5, 2011,to June 24, 2011, the defendant is not entitled to a credit for the entire sum of $5,200,but, in light of foregoing, he is entitled to a credit in the sum of $3,400 for thosepayments.
As the defendant correctly contends, the Supreme Court should have directed that hischild support obligation be decreased by "the amount of any college room and boardexpenses he [*4]incurs while the parties' child[ren]attend[ ] college" (Sotnik v Zavilyansky, 101 AD3d at 1104; see Ayers v Ayers, 92 AD3d623, 625 [2012]; Matter ofLevy v Levy, 52 AD3d 717, 718 [2008]; Rohrs v Rohrs, 297 AD2d 317,318 [2002]).
We agree with the defendant that, as a wage earner contributing to the support of hischildren, he is entitled to claim one of the children as a dependent on his income taxreturns (see Lueker vLueker, 72 AD3d 655, 658 [2010]). Thus, the parties are to equally share thedependent tax exemptions, allowances, and deductions derived from claiming theirchildren as dependents on their respective income tax returns, as directed herein.
As the defendant correctly contends, the Supreme Court erred in directing him tocontribute or to additionally contribute to certain discretionary expenses that the plaintiffincurred on behalf of the children, including a sweet sixteen party for the parties'daughter, trips to South Korea, and new furniture (see Silbowitz v Silbowitz, 226AD2d 699, 700 [1996]). Although the defendant also correctly argues that the courtlacked authority to compel him to contribute to certain "add-on" child care expensesincurred prior to the commencement of this action (see Domestic Relations Law§ 236 [B] [7] [a]), the defendant acknowledges his responsibility for certainpost-commencement medical expenses and tutoring expenses related to the parties'children, totaling $1,082. The plaintiff additionally established that she incurredpost-commencement expenses totaling $709, consisting of $600 for therapy for theparties' son between November 2, 2011, and December 1, 2011, and $109 for eyeglassesfor the parties' daughter on June 30, 2011. Thus, the defendant is responsible for 50% ofthe total sum of $1,791, or $895.50. Additionally, we modify the judgment to correct theSupreme Court's omission of the word "reasonable" to describe the unreimbursed healthcare expenses to be paid by the defendant (see Domestic Relations Law §240 [1-b] [c] [5]; Lueker v Lueker, 72 AD3d at 659).
Contrary to the defendant's assertions, the Supreme Court's decision concluding thathe is obligated to pay, inter alia, pendente lite maintenance, is enforceable against him,notwithstanding that it was never reduced to a written order (see 22 NYCRR202.8 [g]). The defendant challenges the court's award of pendente lite maintenancearrears to the plaintiff, as set forth in the judgment, as well as its failure to award him acredit for the pendente lite maintenance payments he made during the pendency of theaction. The defendant asserts that the pendente lite maintenance award improperlyresulted in a double counting of the income derived from his medical license.
Courts recognize that pendente lite awards are temporary, and some degree ofinequity with respect to such awards is accepted in the interests of judicial economy. Thedefendant's remedy for any perceived inequity was to seek a speedy trial (see Iwanow v Iwanow, 39AD3d 471, 472 [2007]; Brooks v Brooks, 30 AD3d 363, 364 [2006]; Taylor vTaylor, 306 AD2d 401 [2003]). Nonetheless, exercising our discretion pursuant toCPLR 5019 (a), we note that the Supreme Court mistakenly awarded the plaintiff thesum of $30,594 as pendente lite "maintenance arrears." We recalculate the defendant'stotal pendente lite arrears as the sum of $19,800, comprising maintenance arrears in thesum of $13,200, representing the arrears for December 2011, January 2012, February2012, March 2012, April 2012, and May 2012, and the sum of $6,600, representingarrears of pendente lite carrying charges on the former marital residence.
We agree with the defendant that the Supreme Court improvidently exercised itsdiscretion in awarding the plaintiff expert fees (see Domestic Relations Law§ 237 [a]). Absent a showing of necessity or inability to pay, an award of such feesis generally unjustified (seeGilliam v Gilliam, 109 AD3d 871 [2013]; see also Steinmetz vSteinmetz, 98 AD2d 657 [1983]). Here, the Supreme Court awarded the plaintiff apendente lite attorney's fee in the sum of $5,000. At that time, it found that the wife wasfinancially capable of retaining her own expert. Subsequently, the court determined thatthe plaintiff was thereafter capable of paying her own attorney's fee. Therefore, it wasinappropriate for the court to award the plaintiff expert fees under these circumstances.
The defendant's remaining contentions are without merit. Rivera, J.P., Hall, Romanand Miller, JJ., concur.