| Fisher v Fisher |
| 2014 NY Slip Op 07713 [122 AD3d 1032] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| John C. Fisher, Respondent, v Cathy Ann Fisher,Appellant. |
Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for appellant.
Joseph A. Ermeti, Sidney, for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Burns, J.), enteredJanuary 25, 2013 in Otsego County, ordering, among other things, equitable distributionof the parties' marital property, upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were marriedin 1966 and have two adult children. The husband commenced this action for divorce in2011, at which time the parties' primary assets consisted of three parcels of real propertylocated within walking distance of one another in the hamlet of East Worcester, OtsegoCounty; one parcel was improved by the parties' marital residence, one parcel wasimproved by the husband's automotive repair garage and one parcel was vacant. Inaddition to the enumerated parcels, the parties also owned a number of motor vehicles,including a 1940 Dodge Street Rod.
Following a nonjury trial, at which the parties and various appraisers appeared andtestified, Supreme Court awarded the marital residence (valued at approximately$87,000) and its contents to the wife and awarded the repair shop (valued atapproximately $52,000) and its contents to the husband. To account for this disparity,Supreme Court awarded the husband several of the parties' motor vehicles, while thewife retained her personal vehicle and certain shares of stock. Each party also retainedany bank accounts held in his or her own name, and the cash value of the life insurancepolicies at issue—as well as the husband's pension—were to be [*2]divided equally.[FN1] Supreme Court also ordered thehusband to pay maintenance to the wife in the amount of $500 per month for three years.This appeal by the wife ensued.
The wife initially contends that she is entitled to a distributive award in the amountof $10,000, representing one half of the alleged disparity between the respective bankaccounts that she and the husband held in their own names. Although it is apparent froma review of the record that Supreme Court endeavored to divide the parties' marital assetsas evenly as possible, the fact remains that equitable distribution does not require equaldistribution in all instances (seeLurie v Lurie, 94 AD3d 1376, 1378 [2012]) and, in light of the remaining assetsreceived by the wife, we discern no need for the requested distributive award.
As for the wife's challenge to the duration of the maintenance awarded to her, it iswell settled that "the amount and duration of [the] maintenance awarded is a mattercommitted to the discretion of the trial court, after due consideration of the statutoryfactors and the parties' standard of living during the marriage" (Halse v Halse, 93 AD3d1003, 1005 [2012]; see Domestic Relations Law § 236 [B] [6][a]; Cornish vEraca-Cornish, 107 AD3d 1322, 1324 [2013]).[FN2] At the time of trial, theparties—each of whom were in their early 60s and in good health—hadbeen married for more than 40 years. Although the husband had been the primary wageearner during the course of the marriage, both parties were employed at the time of trial;the wife, who performed gardening work for a local campground and worked as acaretaker for an elderly woman, earned approximately $27,000 per year in salary andSocial Security benefits, and the husband, who was a bus driver for a local schooldistrict, earned approximately $40,000 per year. The record further reflects that theparties enjoyed a modest standard of living during their marriage and, as notedpreviously, Supreme Court otherwise allocated the parties' marital assets in anequitable—and nearly equal—fashion. That said, while Supreme Courtawarded the wife one half of the husband's pension, the husband has not yet retired, andwe deem it appropriate—in order to avoid a potential gap in the wife's receipt offinancial support—to [*3]modify the duration ofthe award by providing that the wife shall receive maintenance in the amount of $500 permonth until such time as the husband retires and the wife begins receiving her portion ofhis pension benefits (cf. Settle vMcCoy, 108 AD3d 810, 812 [2013]).
With respect to the allocation of the husband's pension rights, a pension that qualifiesas marital property may be distributed either in a lump sum or future periodic payments(see Shapiro v Shapiro, 91AD3d 1094, 1095 [2012]). To that end, where the titled spouse lacks the presentability to pay for the equitable distribution of his or her pension, a deferred distribution isentirely appropriate (see Chambers v Chambers, 259 AD2d 807, 808 [1999]).Here, the wife does not quarrel with Supreme Court's decision to award her 50% of thehusband's pension but, rather, faults the court for failing to direct that the husband selecta particular payout option. Inasmuch as no request for such a directive was made by thewife—either during the course of the trial or in her posttrialsubmissions—this issue is not properly before us (see Nalbandian vNalbandian, 135 AD2d 621, 623 [1987], lv denied 71 NY2d 802 [1988]).The wife's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Lahtinen, J.P., Rose and Clark, JJ., concur.
Lynch, J. (concurring in part and dissenting in part). I join in the majority opinion,except with respect to Supreme Court's failure to address the selection of a particularpayment option for the pension of plaintiff (hereinafter the husband). A review of therecord shows that the available options were received in evidence, but neither partyaddressed the selection of an option. As it currently stands, the husband could select the"single life allowance" option, which yields the highest payment but will stop when thehusband dies. The reasoned concern of defendant (hereinafter the wife) is that if herhusband predeceases her, she will lose her share of the pension benefit. This is not asituation where the parties addressed the selection of an option in a separation agreement,or expressly agreed to have the court make a selection (compare Mager v Mager,267 AD2d 807, 807 [1999]). Nonetheless, the complete distribution of this marital assetwas before the court, and simply providing for a 50% distribution to each party was notenough to account for the wife's share of this asset.[FN3] In reviewing the available options, it ismy view that the "Pop-Up/Joint Allowance Half" would be appropriate here. Under thatoption, upon the husband's death the wife would continue to receive 50% of the originalmonthly retirement allowance for life; if the wife predeceased the husband, the husband'sbenefit would be increased to the single life allowance (compare McVeigh v Curry, 99AD3d 974, 976 [2012]; Mager v Mager, 267 AD2d at 808). Although thisselection yields a reduced lifetime benefit for the parties, on balance this option wouldsecure each party's equitable interest. Pending the husband's retirement, the husbandshould also be required to maintain the wife as the designated beneficiary for any deathbenefit in order to adequately protect the award to her.
Ordered that the judgment is modified, on the facts, without costs, by reversing somuch thereof as awarded plaintiff maintenance in the amount of $500 per month forthree years; plaintiff is awarded maintenance in the amount of $500 per month until suchtime as defendant retires and plaintiff begins receiving her portion of defendant's pensionbenefits; and, as so modified, affirmed.
Footnote 1:The proceeds from anyjoint bank accounts also were to be divided equally between the parties, as were theproceeds from the court-ordered sale of the vacant lot and those motor vehicles nototherwise expressly awarded to either the husband or the wife.
Footnote 2:Although not raised bythe parties, we note that Domestic Relations Law § 236 (B) (6) (a) wasamended in 2010 to add additional factors to be considered by the trial court infashioning an award of postdivorce maintenance (see L 2010, ch 371,§ 2). As this amendment applied to actions commenced on or after October12, 2010 (see L 2010, ch 371, § 6), and given that this action wascommenced in April 2011, Supreme Court should have considered the expanded list ofstatutory factors in arriving at a maintenance award. That said, remittal is not required, as"this Court's authority is as broad as Supreme Court's in resolving questions ofmaintenance" (McCaffrey vMcCaffrey, 107 AD3d 1106, 1108 [2013] [internal quotation marks andcitations omitted]; cf. Ingersollv Ingersoll, 86 AD3d 684, 685 [2011]).
Footnote 3:Although SupremeCourt did not specify that the distribution would be in accordance with the formulaenunciated in Majauskas v Majauskas (61 NY2d 481 [1984]), it is evident thatthis was the intent, and the pension should be distributed in accord with theMajauskas formula.