| Carroll v Carroll |
| 2015 NY Slip Op 01235 [125 AD3d 710] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Ian P. Carroll, Respondent, v Leslie F. Carroll,Appellant. |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Nicholas P. Barone, White Plains, N.Y. (Scott Stone of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Westchester County (Wood,J.), entered June 24, 2013, as, upon a decision of the same court entered April 1, 2013,made after a nonjury trial, and a decision of the same court entered June 24, 2013,awarded her maintenance retroactive to October 1, 2012, in the sums of only $4,000 permonth for the first six months, $3,200 per month for the next 12 months, and $2,000 permonth thereafter only until the earlier of "five (5) years from October 1, 2012," herremarriage, or the death of either party, and directed that she secure and maintain herown health insurance.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by deleting the words "five (5) years from October 1, 2012," and substitutingtherefor the words "the defendant's attainment of the age of 66"; as so modified, thejudgment is affirmed insofar as appealed from, with costs to the defendant.
The parties were married in 1981 and are the parents of one child, now emancipated.The plaintiff, born in 1956, has, for many years, been employed as a country clubexecutive chef. During the marriage, the defendant, born in 1954, was the primarycaregiver for the parties' child, and worked for only a few years in a part-time capacity.She suffers from, among other things, osteoporosis and depression. In January 2012, theplaintiff commenced this action for a divorce. The parties were divorced by judgmententered June 24, 2013.
" '[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' " (Giokas vGiokas, 73 AD3d 688, 688 [2010], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]; see Alleva v Alleva, 112 AD3d567, 568 [2013]). "The factors to be considered in a maintenance award are, amongothers, the standard of living of the parties, the income and property of the parties, thedistribution of property, the duration of the marriage, the health of the parties, the presentand future earning capacity of the parties, the ability of the party seeking maintenance tobe self-supporting, the reduced or lost earning capacity of the party seeking maintenance,and the presence of children of the marriage in the respective homes of the parties" (Gordon v Gordon, 113 AD3d654, 654-655 [2014]). " 'Maintenance is designed to give the spouseeconomic independence and should continue only as long as is required to render therecipient self-supporting' " (Griggs v Griggs, 44 AD3d 710, 712 [2007], quotingGranade-Bastuck v Bastuck, 249 AD2d 444, 446 [1998]).
Here, the amount of maintenance awarded by the Supreme Court was consistent withthe purpose and function of a maintenance award, considering, inter alia, the defendant'slimited [*2]work experience, impaired medical condition,and lack of child-rearing responsibilities (see Marley v Marley, 106 AD3d 961, 962 [2013];Giokas v Giokas, 73 AD3d at 689). However, the Supreme Court improvidentlyexercised its discretion in fixing the duration of the maintenance awarded to thedefendant at the earliest of October 1, 2017, the defendant's remarriage, or the death ofeither party (see Hymowitz vHymowitz, 119 AD3d 736 [2014]). In light of the parties' long-term marriage,their respective ages, and their financial circumstances, and because the defendant hasonly part-time work experience and suffers from various medical conditions, "it isunrealistic to believe" that she will be able to achieve a "level of financial independencewhich would eliminate" her need to rely on the plaintiff's support (Kret v Kret,222 AD2d 412, 412 [1995]; seeRabinovich v Shevchenko, 93 AD3d 774, 775 [2012]). Accordingly, theSupreme Court should have awarded the defendant maintenance until the earliest of hereligibility for full Social Security retirement benefits at the age of 66, her remarriage, orthe death of either party (seeHymowitz v Hymowitz, 119 AD3d 736 [2014]; Marley v Marley, 106 AD3d961 [2013]; Kaufman vKaufman, 102 AD3d 925, 926-927 [2013]; Giokas v Giokas, 73 AD3dat 689; Baron v Baron, 71AD3d 807, 810 [2010]; Penna v Penna, 29 AD3d 970 [2006]).
Contrary to the defendant's contention, under the circumstances of this case, theSupreme Court providently exercised its discretion in directing her to obtain her ownhealth insurance coverage (see Domestic Relations Law § 236 [B][8] [a]).
The parties' remaining contentions either are without merit or have been renderedacademic by our determination. Skelos, J.P., Dillon, Miller and LaSalle, JJ., concur.