| Kessler v Kessler |
| 2014 NY Slip Op 04736 [118 AD3d 946] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Charles Kessler, Respondent, v Freda Kessler,Appellant. |
Harris Law Firm, P.C., Rockville Centre, N.Y. (Sondra I. Harris of counsel), forappellant.
Phyllis B. Levitas, New York, N.Y., for respondent.
Motion by the respondent for leave to reargue stated portions of an appeal from ajudgment of divorce of the Supreme Court, Westchester County, dated September 28,2011, which was determined by decision and order of this Court dated November 27,2013. Cross motion by the appellant for leave to reargue stated portions of theappeal.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the papers filed in support of the cross motion and no papers havingbeen filed in opposition or in relation thereto, it is
Ordered that the cross motion is denied; and it is further,
Ordered that the motion is granted to the extent that reargument is granted, uponreargument, the decision and order of this Court dated November 27, 2013 (Kessler v Kessler, 111 AD3d895 [2013]), is recalled and vacated, and the following decision and order issubstituted therefor, and the motion is otherwise denied:
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of a judgment of divorce of the Supreme Court, Westchester County(Connolly, J.), dated September 28, 2011, as, upon a decision of the same court enteredMarch 4, 2011, made after a nonjury trial, awarded the plaintiff a credit in the sum of$5,038.63 for 50% of the payments he made on the mortgage on the marital residence,awarded the plaintiff a credit in the sum of $28,330, representing 50% of the attorney'sfees and taxes the plaintiff paid with regard to the settlement of an unrelated action,determined that the mortgage on the marital residence was valid, declined to award hermaintenance, imputed income to her in the amount of $65,000 annually, directed her topay the plaintiff the sum of $2,705.76 to equalize their retirement accounts, awarded heronly 50% of the marital portion of the plaintiff's pension, failed to award her a credit forthe payment of $20,000 of premarital debt, failed to award her a credit in the sum of$47,875 for the past wages portion of the settlement of the unrelated action, failed todetermine that the plaintiff breached his fiduciary duty to her, failed to determine that theplaintiff dissipated marital assets, failed to direct [*2]anaccounting, and equitably distributed the parties' marital property equally.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff a credit in the sum of$28,330, representing 50% of the attorney's fees and taxes the plaintiff paid with regardto the settlement of an unrelated action, and substituting therefor a provision awardingthe plaintiff a credit of $15,696, representing 50% of the taxes paid on the settlementaward, (2) by deleting the provision thereof imputing income to the defendant in theamount of $65,000 annually, and substituting therefor a provision imputing income tothe defendant in the amount of $30,000 annually, and (3) by deleting the provisionthereof declining to award the defendant maintenance; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements, and the matter isremitted to the Supreme Court, Westchester County, for a determination, in accordanceherewith, of whether the defendant is entitled to an award of maintenance, and, if so,how much, and, if necessary, the entry of an appropriate amended judgmentthereafter.
Contrary to the defendant's contention, under the circumstances of this case, anaward of 50% of the parties' marital property to each of them constitutes an equitabledistribution of that property (see Domestic Relations Law § 236 [B][1] [d] [3]; [5] [c]; Johnson vChapin, 12 NY3d 461 [2009]; Caracciolo v Chodkowski, 90 AD3d 801 [2011]). Further,the Supreme Court providently exercised its discretion in denying the defendant a creditfor $20,000 of marital funds used to pay a premarital debt of the plaintiff. "The parties'choice of how to spend funds during the course of the marriage should ordinarily berespected," and the "[c]ourts should not second-guess the economic decisions madeduring the course of a marriage, but rather should equitably distribute the assets andobligations remaining once the relationship is at an end" (Mahoney-Buntzman vBuntzman, 12 NY3d 415, 421 [2009]; see Caracciolo v Chodkowski, 90 AD3d 801 [2011]).
In determining a maintenance obligation, a court need not rely on a party's ownaccount of his or her finances (see Friedman v Friedman, 309 AD2d 830[2003]; Bell v Bell, 277 AD2d 411 [2000]), but may, in the exercise of itsconsiderable discretion (seeLago v Adrion, 93 AD3d 697 [2012]; Matter of Julianska v Majewski, 78 AD3d 1182 [2010]),impute income to a party based upon his or her employment history, future earningscapacity, and educational background (see Lago v Adrion, 93 AD3d 697 [2012]; Friedman vFriedman, 309 AD2d 830 [2003]), and what he or she is capable of earning, basedupon prevailing market conditions and prevailing salaries paid to individuals with theparty's credentials in his or her chosen field (see Lago v Adrion, 93 AD3d 697 [2012]; Matter of Gebaide vMcGoldrick, 74 AD3d 966 [2010]). Upon consideration of these factors, wereduce the amount of annual income imputed to the defendant from $65,000 to$30,000.
Based upon our modification of the amount of the defendant's imputed annualincome, the discrepancy between the parties' incomes will necessarily be larger thanpreviously calculated. Accordingly, we remit the matter to the Supreme Court,Westchester County, for a determination of whether the defendant is entitled to an awardof maintenance, based upon factors including the respective imputed income of thedefendant, as recalculated, and the plaintiff, the parties' pre-divorce standard of living,and the financial resources of each, considered separately, balancing the defendant'sneeds with the plaintiff's ability to pay (see Kover v Kover, 29 NY2d 408 [1972];O'Brien v O'Brien, 88AD3d 775 [2011]; Litvak vLitvak, 63 AD3d 691 [2009]).
Additionally, the Supreme Court should not have awarded the plaintiff a credit in thesum of $12,634, representing 50% of the attorney's fees paid in connection with theprosecution of an unrelated action which was settled in the defendant's favor. Since asignificant portion of the settlement funds were ultimately determined to be maritalproperty, the fees paid in connection with the prosecution of that action were marital debt(see Iarocci v Iarocci, 98AD3d 999, 1000 [2012]).
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Balkinand Roman, JJ., concur.