| Curley v Curley |
| 2015 NY Slip Op 01692 [125 AD3d 1227] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Philomena Curley, Respondent, v Charles M. Curley,Appellant. |
Tate Law Office, Liverpool (Jonathan O. Tate of counsel), for appellant.
Alderman & Alderman, Syracuse (Edward B. Alderman of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Rumsey, J.), entered June13, 2013 in Cortland County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court.
The parties were married in 1979 and have no children together. On June 16, 2009,plaintiff (hereinafter the wife) commenced this action seeking a judgment of divorce andrelated relief, and defendant (hereinafter the husband) responded by serving an answerand cross claim seeking the same. The parties ultimately stipulated to grounds fordivorce, and a trial of the remaining unresolved issues was held in November 2011.Supreme Court issued a decision in July 2012, which was subsequently merged into ajudgment of divorce, ordering the equitable distribution of certain property and directingthe husband to pay spousal maintenance and counsel fees. The husband appeals.
As to maintenance, Supreme Court ordered the husband to pay $900 per monthstarting upon the date of the wife's commencement of the action in June 2009 throughDecember 2012, and $500 per month thereafter from January 2013 through December2013, at which time the husband's maintenance obligation would end. In making anaward of spousal maintenance, the court is required to consider the statutory factors setforth in the Domestic Relations Law and the marital standard of living (seeDomestic Relations Law § 236 [B] [6]; Alecca v Alecca, 111 AD3d 1127, 1129 [2013]; Roberto v Roberto, 90 AD3d1373, 1376 [2011]). The court must provide a reasoned analysis of the factors itultimately relies upon in awarding maintenance, but it "is not required to analyze andapply every factor set forth in [the statute]" (McAteer v McAteer, 294 AD2d 783,784 [2002]; see Hartog v Hartog, 85 NY2d 36, 51 [1995]; Quarty v [*2]Quarty, 96 AD3d 1274, 1277 [2012]; Freas v Freas, 33 AD3d1069, 1071 [2006]; Wojewodzic v Wojewodzic, 300 AD2d 985, 986[2002]). The issue is addressed to the court's sound discretion (see Settle v McCoy, 108 AD3d810, 811 [2013]; Armstrong v Armstrong, 72 AD3d 1409, 1415 [2010]), andwe have found maintenance to be appropriate when, among other things, the marriagewas long-lasting and when one spouse made significant noneconomic contributions tothe household or to the career of the other (see Williams v Williams, 99 AD3d 1094, 1095[2012]).
Here, contrary to the husband's contention upon appeal, we find that the decisionreflects that Supreme Court properly considered the relevant statutory factors, andprovided a reasoned analysis of those upon which it had based the award. The courtnoted that the parties had no children, were both in good health, and had been marriedfor nearly 30 years. During most of that time, the wife worked full time and alsocontributed to the household by doing most of the cooking, cleaning, and laundering.The wife had a high school degree; during the marriage, the husband returned to schoolto obtain a Master's degree, while the wife continued to work. At the time of trial, thewife had retired, while the husband was still working as an engineer. The court noted thewife's testimony that she believed her position was in jeopardy when she accepted anearly retirement incentive and, without expressly crediting this testimony, further notedthat the position had not been filled in the two years between the retirement and the dateof trial. However, in light of the wife's further testimony that she did not intend to seekalternate employment, and in accord with the purpose of maintenance to promoteself-sufficiency (see Biagiotti vBiagiotti, 97 AD3d 941, 942 [2012]), the court limited the duration of thehusband's obligation and provided for the amount paid to substantially decrease overtime. Upon review and considering all of the circumstances, and particularly in view ofthe durational limitation, we find that the court's award of maintenance was appropriate,and we decline to disturb it (see id.).
The husband further argues that Supreme Court erred by not awarding him adistributive share of the wife's retirement incentive benefits. The record reveals that, inexchange for agreeing to retire from her position as a university administrator andsurrender her accrued vacation and sick leave, the wife was paid a lump sum of moneyshortly after commencement of the divorce action. The husband asserts that the wife'seligibility for the retirement incentive benefits was derived from her employment duringthe marriage and, as such, the benefits should have been subject to equitable distribution.Benefits received in consideration for an early retirement will constitute marital propertyif the right to the payments arose during the marriage, or where the incentive is intendedas compensation for past services rendered by the employee-spouse during the marriage(see Olivo v Olivo, 82 NY2d 202, 207-208 [1993]; compare Bink v Bink, 55AD3d 1244, 1245 [2008]). Here, the wife's inclusion in the retirement incentiveprogram was based, at least in part, on the number of years of service to her employer (see Osorio v Osorio, 84 AD3d1333, 1335 [2011]). Additionally, the wife testified that she accepted inclusion inthe early retirement program in April 2009. This evidence is reinforced by an email fromthe wife's employer indicating that the employer's decision regarding which employeeswould be accepted into the early retirement program would be made in April 2009. Thus,we find that the wife's entitlement to the early retirement benefits vested during themarriage. The mere fact that the incentive benefits were not paid until following thecommencement of the proceedings did not alter their status as marital property subject toequitable distribution (see Hartog v Hartog, 85 NY2d at 49; Howe v Howe, 68 AD3d38, 46 [2009]; Nielsen v Nielsen, 256 AD2d 1173, 1173 [1998]).
Next, the husband argues that Supreme Court erred by selecting improper valuationdates when determining the value of the parties' investment and retirement accounts. Inselecting [*3]a valuation date, a trial court has broaddiscretion and may select any appropriate date between the date of commencement andthe date of trial (see Domestic Relations Law § 236 [B] [4] [b];Williams v Williams, 99 AD3d at 1096; Halse v Halse, 93 AD3d 1003, 1004 [2012]). Upon review,we find no error in the court's selection of a valuation date for the husband's TDAmeritrade investment account. As to the wife's TIAA-CREF retirement account,however, the court improvidently exercised its discretion by selecting a valuation date ofJune 12, 2009, prior to the commencement of the action. In this regard, the parties haveadvised this Court that further proceedings pertaining to the TIAA-CREF account havetaken place in Supreme Court during the pendency of this appeal, and the wife contendsthat the husband has waived his right to raise issues related to this account on appeal byaccepting distribution of a share of the account. However, any such acceptance did notconstitute a waiver, as the purpose of the husband's appeal was to increase the amount ofthe award, and the wife does not argue that he was not entitled to the amounts he hasallegedly accepted (see Cornell v T.V. Dev. Corp., 17 NY2d 69, 73 [1966];Matter of Fleischer, 126 AD2d 805, 807 [1987]; compare Roffey vRoffey, 217 AD2d 864, 865-866 [1995]). We find that the issue of selecting anappropriate valuation date for the TIAA-CREF account, as well as other issues raised bythe parties in relation to that account, are best addressed by remittal to Supreme Court,where a full record of the subsequent proceedings is available.
Next, we reject the husband's claim that Supreme Court erred in allowing the wife toreceive her distributive share from the proceeds of the sale of the parties' marital homewithout regard for the resulting tax consequences to the husband. The husband presentedno evidence with respect to any alleged tax consequences, and the court was not requiredto independently analyze the myriad of potential tax ramifications on the parties (see Taverna v Taverna, 56AD3d 461, 462 [2008]; Cameron v Cameron, 51 AD3d 1165, 1166 [2008], lvdenied 11 NY3d 702 [2008]; Altieri v Altieri, 35 AD3d 1093, 1095 [2006]).
Finally, as to the award of counsel fees, the record fails to demonstrate that the wifeproperly supported her claim by filing a copy of the retainer agreement and a detailedaffidavit setting forth the charges incurred (see Domestic Relations Law§ 237 [a]; 22 NYCRR 1400.3). An award of counsel fees requires that anevidentiary basis be established as to two elements: the parties' respective financialcircumstances and the value of the legal services rendered (see Yarinsky v Yarinsky, 2AD3d 1108, 1110 [2003]). Here, the wife's testimony at trial as to the amount shehad expended, without more, failed to "furnish a meaningful way to gauge the value ofthe services rendered" (Barnaby v Barnaby, 259 AD2d 870, 872 [1999]).Accordingly, we reverse the award rendered in the judgment, while specifically notingthat this does not affect an earlier award of pendente lite counsel fees.
Peters, P.J., McCarthy and Rose, JJ., concur. Ordered that the judgment is modified,on the law, without costs, by reversing so much thereof as (1) denied defendant equitabledistribution of plaintiff's early retirement benefits, (2) established a valuation date of June12, 2009 for plaintiff's TIAA-CREF account, and (3) awarded counsel fees to plaintiff;defendant is entitled to equitable distribution of plaintiff's early retirement incentivebenefits and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.