| Antinora v Antinora |
| 2015 NY Slip Op 01057 [125 AD3d 1336] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Julie W. Antinora, Respondent-Appellant, v Terrance J.Antinora, Appellant-Respondent. |
Davidson Fink, LLP, Rochester (Donald A. White of counsel), fordefendant-appellant-respondent.
Maureen A. Pineau, Rochester, for plaintiff-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Monroe County(John M. Owens, J.), entered June 5, 2013 in a divorce action. The judgment, amongother things, awarded plaintiff spousal maintenance.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the award of child support, ordering plaintiff to pay defendant thesum of $2,768.30 for her wasteful dissipation of assets, vacating the decretal paragraphconcerning the marital residence, and ordering that the retirement account from plaintiff'spremarital employer was not marital property and that defendant's Roth IRA account wasmarital property, and as modified the judgment is affirmed without costs and the matter isremitted to Supreme Court, Monroe County, for further proceedings in accordance withthe following memorandum: In this divorce action, defendant husband appeals andplaintiff wife cross-appeals from an order issued by the Referee who presided over theparties' nonjury trial. We note at the outset that the parties' notices of appeal and crossappeal recite that the husband and wife are appealing and cross-appealing from theReferee's order, rather than from the judgment of divorce entered in Supreme Court.Nevertheless, in the exercise of our discretion, we treat the notices of appeal and crossappeal as valid and deem the appeal and cross appeal as taken from the judgment (seeCPLR 5520 [c]; Myers vMyers, 87 AD3d 1393, 1394 [2011]).
We reject the husband's contention that the amount and duration of the spousalmaintenance award were an abuse of the court's discretion (see generally Hartog vHartog, 85 NY2d 36, 51-52 [1995]). Contrary to the wife's contention, the husbandestablished at trial that he was entitled to credits against any award for retroactivemaintenance for his voluntary payments toward "the other party's share of what prove[d]to be marital debt" (Le v Le,82 AD3d 845, 846 [2011]; see generally Myers v Myers, 87 AD3d 1393, 1394-1395[2011]; Heiny v Heiny, 74AD3d 1284, 1285 [2010]).
We agree with the husband that the court failed to articulate a proper basis forapplying the Child Support Standards Act (CSSA) to the combined parental income inexcess of the statutory cap, which was $136,000 at the time (see DomesticRelations Law § 240 [1-b] [c] [2], [3]; Social Services Law§ 111-i [2] [b]; Matter of Cassano v Cassano, 85 NY2d 649,654-655 [1995]; Irene v Irene [appeal No. 2], 41 AD3d 1179, 1181 [2007]). Inparticular, the court failed to indicate how the children's actual needs would not be met ifit had calculated child support at the statutory cap (see generally Matter of Miller v Miller, 55 AD3d 1267,1268-1269 [2008]). It is well settled that " 'blind application of the statutoryformula to [combined parental income] over [$136,000], without any express findings orrecord evidence of the children's actual needs, constitutes an abdication of judicialresponsibility and renders meaningless the statutory provision setting a cap on strictapplication of the formula' " (Matter of Malecki v Fernandez, 24 AD3d 1214, 1215[2005]). In addition, although not raised by the parties, we conclude that the court erredin failing to order [*2]that child support be adjusted upontermination of maintenance, pursuant to Domestic Relations Law § 240(1-b) (b) (5) (vii) (C) (seeMartin v Martin, 115 AD3d 1315, 1316 [2014]; Ripka v Ripka, 77 AD3d1384, 1386 [2010]). We therefore further modify the judgment by vacating theaward of child support, and we remit the matter to Supreme Court to determine thehusband's present and prospective child support obligations in compliance with theCSSA, following a further hearing, if necessary (see Martin, 115 AD3d at 1316),and to order that child support be adjusted upon termination of maintenance.
We reject the contentions of the parties that the court erred in determining that theywastefully dissipated marital assets (see Domestic Relations Law§ 236 [B] [5] [d] [12]). We conclude, however, that the court erred in itscalculations of such wasteful dissipation in determining the equitable distribution award.In our view, the record establishes that the husband wastefully dissipated $5,862, andthat the wife wastefully dissipated $11,398.59, in marital assets. The husband is thusentitled to a credit of one half of the difference of those two amounts, i.e., $2,768.30, andwe therefore further modify the judgment by ordering plaintiff to pay defendant thatamount (see Sotnik vZavilyansky, 101 AD3d 1102, 1104 [2012]).
Contrary to the wife's contention, the court did not abuse its discretion in adjustingthe distributive award in lieu of requiring the husband to contribute to her attorney's fees.Inasmuch as the wife is the less monied spouse, thereby triggering the rebuttablepresumption entitling her to attorney's fees, the court was required to articulate why itwas not awarding attorney's fees to the wife (see Domestic Relations Law§ 237 [a]; Leonardv Leonard, 109 AD3d 126, 129-130 [2013]). We conclude that the courtsufficiently articulated its rationale when it explained that, instead of having the husbandcontribute to the wife's attorney's fees, it would increase the distributive award to thewife by granting her, inter alia, the proceeds of an unsold luxury automobile andrelieving her of her share of the marital credit card debt (see Crook v Crook, 85 AD3d958, 959 [2011]; Redgravev Redgrave, 22 AD3d 913, 914 [2005]; see generally McCarthy vMcCarthy, 172 AD2d 1040, 1040 [1991]).
With respect to the value of the marital residence, we agree with the parties that thecourt erred in simply averaging the values set forth in the appraisals of the parties'experts without articulating its reason for doing so (see Domestic Relations Law§ 236 [B] [5] [g]; Capasso v Capasso, 119 AD2d 268, 272 [1986]).We therefore further modify the judgment by vacating the decretal paragraph concerningthe marital residence, and we remit the matter to Supreme Court for "appropriate findingsof fact and conclusions of law as required by statute" with respect to the valuation of themarital residence (Diachuk v Diachuk, 117 AD2d 985, 986 [1986]).
Contrary to the wife's contention, in light of the husband's prior voluntarymaintenance payments (see Domestic Relations Law § 236 [B] [6][a]), and considering the husband's share of marital debt (see Le, 82 AD3d at846; see also Myers, 87 AD3d at 1394-1395), we conclude that the court properlydetermined that she is not entitled to retroactive spousal maintenance.
We reject the wife's further contention that she is entitled to a credit for the statutoryadd-on expenses permitted in addition to the basic child support obligation under theCSSA, which include child care and uninsured health care expenses (seeDomestic Relations Law § 240 [1-b] [c] [4]-[5]). Although we agreewith the wife that she is entitled to a pro rata share of such payments from the husband,we also agree with the husband that he is entitled to a credit against such future expensesbased on his past voluntary maintenance and child support payments (see Lester vLester, 237 AD2d 872, 873 [1997]), and we therefore further modify that part of thejudgment awarding child support. The record establishes that the husband's pro rata shareof the statutory add-on expenses is $15,008.28. In light of our decision to remit for a newdetermination of the husband's basic child support obligation, we cannot determine theaforementioned credit due to the husband for future add-on expenses, and we directSupreme Court upon remittal to determine that credit after calculating the husband's basicchild support obligation.
We agree with the wife, however, that the court erred in concluding that herretirement account sponsored by her premarital employer was marital property and infailing to provide for the equitable distribution of the husband's Roth IRA. At trial, thewife rebutted the presumption that her retirement account is marital property (seegenerally Domestic Relations Law § 236 [B] [1] [d] [1]; Fields v Fields, 15 NY3d158, 162-163 [2010], rearg denied 15 NY3d 819 [2010]; Bailey v Bailey, 48 AD3d1123, 1124 [2008]). The record establishes that her premarital employersponsored the [*3]account, and the wife's testimony thatshe contributed to the account only prior to marriage was uncontroverted (see Kenney v Lureman, 8AD3d 1099, 1100 [2004]). We further agree with the wife that the husband did notrebut the presumption, either with account statements or with his own testimony, that hisRoth IRA is marital property (cf. id.), and the husband's statement of net worth,alone, is insufficient to rebut the presumption that the Roth IRA is marital property(see Allen v Allen, 263 AD2d 691, 692 [1999]). We therefore further modify thatpart of the judgment concerning the parties' pension/retirement assets by ordering that theretirement account sponsored by the wife's premarital employer is the wife's separateproperty, and we direct Supreme Court upon remittal to provide for the equitabledistribution of the husband's Roth IRA.
We reject the wife's contention that the court erred in awarding the husband certainbenefits under her New York State pension. In pertinent part, those benefits includedpostretirement cost of living adjustments, preretirement survivorship protection,postretirement joint and survivor protection, and an early retirement subsidy. It is wellsettled that "[v]ested rights in a noncontributory pension plan are marital property to theextent that they were acquired between the date of the marriage and the commencementof a matrimonial action, even though the rights are unmatured at the time the action isbegun" (Majauskas v Majauskas, 61 NY2d 481, 485-486 [1984]). Therefore, thecourt properly awarded the husband postretirement cost of living adjustments, inasmuchas they "are merely supplements and enhancements to already existing pension benefits"(Pagliaro v Pagliaro, 31AD3d 728, 730 [2006]; seeLemesis v Lemesis, 38 AD3d 1331, 1332 [2007]). Additionally, the courtproperly required the wife to elect a preretirement and postretirement survivorshipannuity option in her pension to benefit the husband, inasmuch as the wife has the optionof electing a maximum payment to herself, which would deny surviving beneficiaries anypayment from the pension (see Ferriera v Ferriera, 112 AD2d 22, 23 [1985];Farsace v Farsace, 97 AD2d 951, 951-952 [1983]). Finally, the court properlyawarded the husband a right to any early retirement subsidy elected by the wife under thepension. Although the wife has not yet had an opportunity to elect an early retirementsubsidy, any enhanced retirement income received as a result of a subsidy, other than aSocial Security bridge payment or separation payment, would be consideredcompensation and marital property subject to equitable distribution (see Olivo vOlivo, 82 NY2d 202, 207-209 [1993]; D'Ambra v D'Ambra [appeal No. 2],94 AD3d 1532, 1535 [2012]). Present—Centra, J.P., Fahey, Whalen andDeJoseph, JJ.