| Gordon v Gordon |
| 2014 NY Slip Op 00205 [113 AD3d 654] |
| January 15, 2014 |
| Appellate Division, Second Department |
| Lisa Gordon, Appellant, v Laurence Gordon,Respondent. |
—[*1] Koopersmith Klein LLC, Garden City, N.Y. (Glenn S. Koopersmith, KennethKoopersmith, and Arnold Klein of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals (1) from acorrected decision of the Supreme Court, Nassau County (O'Connell, J.H.O.), datedMarch 23, 2012, made after a nonjury trial, and (2), as limited by her brief, from so muchof a judgment of the same court entered May 4, 2012, as, upon, inter alia, the correcteddecision, awarded her maintenance only in the sum of $1,000 per week commencing onFebruary 10, 2012, through October 31, 2012, $1,100 per week commencing November1, 2012, through the closing on the sale of the former marital residence, and $1,775 perweek thereafter until she attains the age of 62, awarded her only 20% of the defendant'sinterest in Floral Management Realty Corporation, and failed to direct the defendant topay all unreimbursed health care expenses of the children.
Ordered that the appeal from the corrected decision dated March 23, 2012, isdismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr.Corp., 100 AD2d 509, 509-510 [1984]); and it is further,
Ordered that the judgment is modified, on the law, by adding a provision theretodirecting the defendant to pay 100% of all reasonable unreimbursed health care expensesof the parties' children; as so modified, the judgment is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendant.
" '[T]he 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' "(Giokas v Giokas, 73 AD3d688, 688 [2010], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]). Thefactors to be considered in a maintenance award are, among others, the standard of livingof the parties, the income and property of the parties, the distribution of property, theduration of the marriage, the health of the parties, the present and future earning capacityof the parties, the ability of the party seeking maintenance to be self-supporting, thereduced or lost earning capacity of the party seeking maintenance, and the presence ofchildren of the marriage in the respective homes of the parties (see DomesticRelations Law § 236 [B] [6] [a]; Meccariello v Meccariello, 46 AD3d 640, 641-642 [2007];Griggs v Griggs, 44 AD3d710, 711-712 [2007]). "The overriding purpose of a maintenance award is to givethe spouse economic independence, and it should be awarded for a duration that wouldprovide the [*2]recipient with enough time to becomeself-supporting" (Sirgant vSirgant, 43 AD3d 1034, 1035 [2007]; see Scarlett v Scarlett, 35 AD3d 710, 711 [2006]). Here,considering the relevant factors, the amount and duration of the award of maintenancewas a provident exercise of discretion.
Contrary to the plaintiff's contentions, the trial court providently exercised itsdiscretion in awarding her 20% of the defendant's interest in Floral Management RealtyCorporation. The award of 20% "takes into account the plaintiff's minimal direct andindirect involvement in the defendant's company, while not ignoring her contributions asthe primary caretaker for the parties' children, which allowed the defendant to focus onhis business" (Baron vBaron, 71 AD3d 807, 809 [2010]; see Ventimiglia v Ventimiglia, 307AD2d 993, 994 [2003]; Wagner v Dunetz, 299 AD2d 347, 349 [2002]).
The trial court, however, erred by not addressing the payment of the unreimbursedhealth care expenses of the parties' children. Generally, the obligation to pay thoseexpenses is to be prorated in the same proportion as each parent's income is to thecombined parental income (see Domestic Relations Law § 240 [1-b] [c][5] [v]). Here, the trial court determined that the defendant's income represented 100% ofthe combined parental income. Consequently, we modify the judgment to include aprovision directing the defendant to pay 100% of the children's unreimbursed reasonablehealth care expenses (see Domestic Relations Law § 240 [1-b] [c] [5];Griggs v Griggs, 44 AD3d at 714; Sicurelli v Sicurelli, 285 AD2d 541,542-543 [2001]).
We decline to consider the plaintiff's request for an award of an attorney's feeincurred in connection with this appeal. This request should be addressed in the firstinstance to the Supreme Court (see Smulevitz v Smulevitz, 91 AD3d 752, 753 [2012];Kane v Rudansky, 309 AD2d 785, 785 [2003]). Eng, P.J., Dickerson, Chambersand Hall, JJ., concur.