| Hainsworth v Hainsworth |
| 2014 NY Slip Op 04169 [118 AD3d 747] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| Glenis Raphael Hainsworth,Respondent, v Victor Hainsworth, Appellant. |
Victor Hainsworth, Staten Island, N.Y., appellant pro se.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Richmond County (DeLizzo, Ct. Atty. Ref.), entered March 21, 2013, which, upon a decision of the same courtdated June 12, 2012, made after a nonjury trial, inter alia, imputed to him an annualincome of $102,000 for the purpose of calculating his child support obligation, awardedthe plaintiff maintenance in the sum of $1,500 per month until the earlier of her attainingthe age of 62, her remarriage, or her death, directed him to secure his maintenance andchild support obligations by maintaining a life insurance policy with a death benefit inthe sum of $500,000, and awarded the plaintiff the sum of $35,993.37 in counselfees.
Ordered that on the Court's own motion, the notice of appeal from the decision isdeemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,
Ordered that the judgment is modified, on the law, by adding a provision theretostating that the defendant's life insurance obligation shall terminate upon the terminationof his maintenance and child support obligations; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements.
" '[T]he amount and duration of maintenance is a matter committed to thesound discretion of the trial court, and every case must be determined on its own uniquefacts' " (Marley vMarley, 106 AD3d 961, 962 [2013], quoting Siskind v Siskind, 89 AD3d 832, 833 [2011]). Indetermining the amount and duration of an award of maintenance, the Supreme Court"must consider the factors enumerated in Domestic Relations Law § 236(B) (6) (a), which include the predivorce standard of living of the parties, the income andproperty of the parties, the equitable distribution of marital property, the duration of themarriage, the present and future earning capacity of the parties, the ability of the partyseeking maintenance to be self-supporting, and the reduced or lost earning capacity ofthe party seeking maintenance" (Giokas v Giokas, 73 AD3d 688, 689 [2010]; see Hartogv Hartog, 85 NY2d 36, 51-52 [1995]; Marley v Marley, 106 AD3d at 962;Siskind v Siskind, 89 AD3d at 833; Litvak v Litvak, 63 AD3d 691 [2009]). Here, the SupremeCourt properly considered the relevant factors, which included the long duration of themarriage, the disparity in the parties' incomes, the plaintiff's limited earning potential, theplaintiff's limited assets, the insignificant distributive award, and the parties' predivorcestandard of living, and providently exercised its discretion in awarding the plaintiffmaintenance in the sum of $1,500 per month until the earlier of the plaintiff attaining theage of 62, her remarriage, or her death (see Levitt v Levitt, 97 AD3d 543, 544 [2012]; Siskind vSiskind, 89 AD3d at 833; Litvak v Litvak, 63 AD3d at691-692).
[*2] "A court need not rely upon aparty's own account of his or her finances, but may impute income based upon the party'spast income or demonstrated future potential earnings" (Haagen-Islami v Islami, 96AD3d 1004, 1005 [2012] [internal quotation marks omitted]; see Patete v Rodriguez, 109AD3d 595, 599 [2013]; Sotnik v Zavilyansky, 101 AD3d 1102, 1103 [2012]; Cusumano v Cusumano, 96AD3d 988, 989 [2012]). "The court may impute income to a party based on his orher employment history, future earning capacity, educational background, or moneyreceived from friends and relatives" (Haagen-Islami v Islami, 96 AD3d at 1005[internal quotation marks omitted]; see Sotnik v Zavilyansky, 101 AD3d at1104). Contrary to the defendant's contention, the Supreme Court did not improvidentlyexercise its discretion in imputing his 2008 reported income to him for the purpose ofdetermining his child support obligation, as that amount was reflective of his "pastincome" and "demonstrated earning potential" (Siskind v Siskind, 89 AD3d at833-834; see Cusumano v Cusumano, 96 AD3d at 989).
"The plain language of [Domestic Relations Law § 236 (B) (8) (a)]expressly provides that life insurance may be used as a means to secure maintenance andchild support payments, so that dependent spouses and children will be adequatelyprotected" (Hartog v Hartog, 85 NY2d at 50). In the absence of any evidence attrial that the defendant is currently uninsurable due to a preexisting medical condition,the Supreme Court providently exercised its discretion in directing the defendant tomaintain a life insurance policy to secure his maintenance and child support obligations(see Miceli v Miceli, 78AD3d 1023, 1026 [2010]). However, the judgment must be modified to provide thatthe defendant's life insurance obligation shall terminate upon the termination of hismaintenance and child support obligations (see Penna v Penna, 29 AD3d 970, 972 [2006]).
The defendant's remaining contentions are without merit. Eng, P.J., Rivera, Romanand LaSalle, JJ., concur.