| Kerley v Kerley |
| 2015 NY Slip Op 06891 [131 AD3d 1124] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Stacey Lynn Kerley, Respondent, v TheodoreKevin Kerley, Appellant. |
Alexander Potruch, LLC, Garden City, N.Y., for appellant.
The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Adam J.Edelstein of counsel), for respondent.
Barbara H. Kopman (Glenn S. Koopersmith, Garden City, N.Y., of counsel), attorneyfor the children.
Appeals from an order of the Supreme Court, Nassau County (Norman Janowitz, J.),dated March 13, 2013, and a judgment of divorce of the same court dated April 17, 2013.The order granted the plaintiff's application for an award of counsel fees. The judgmentof divorce, insofar as appealed from, after a nonjury trial and upon a decision datedFebruary 26, 2013, and upon an order of the same court dated May 4, 2012, inter alia,denying those branches of the defendant's motion which were to disqualify the attorneyfor the child and disallow her attorney's fee, equitably distributed 30% of the maritalproperty to the defendant, continued the suspension of the defendant's parenting access tothe parties' children pursuant to an order dated February 21, 2012, awarded child supportto the plaintiff, provided no credit to the defendant for temporary maintenance paymentsmade by him to the plaintiff during the pendency of the action, directed the defendant toprovide medical and dental insurance for the parties' children until their emancipation,and directed the defendant to reimburse the plaintiff $4,702.50 in forensic expertexpenses.
Ordered that on the Court's own motion, the notice of appeal from the order datedMarch 13, 2013, is deemed to be an application for leave to appeal, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated March 13, 2013, is affirmed; and it is further,
Ordered that the judgment of divorce is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The parties were married on August 14, 1993, and have three children in common.[*2]The first was born in 1998, and the second and third,twins, were born in 2001. During the marriage, the defendant worked as an accountexecutive for a television network and consistently earned substantially more than theplaintiff, who worked as a public school teacher. The defendant earned $270,965.01 in2010 and $448,388.99 in 2011, while the plaintiff earned $125,960.80 and $157,868.00in each of those years. In April 2009, the plaintiff commenced this matrimonial actionseeking, among other things, child support and equitable distribution. Following anonjury trial, the Supreme Court, inter alia, awarded the plaintiff 70% of the maritalassets, and the defendant 30%, upon consideration of the statutory factors enumerated inDomestic Relations Law § 236 (B) (5) (d), including a finding that thedefendant wastefully dissipated marital assets and awarded counsel fees to the plaintiff inthe sum of $80,000.
The Supreme Court found the defendant's testimony to be "devoid of any credibility,unsupportable, and utterly unreliable." The assessment of credibility is a mattercommitted to the trial court's sound discretion and deference is owed to the trial court'scredibility determinations (seeScher v Scher, 91 AD3d 842, 847 [2012]; Papovitch v Papovitch, 84 AD3d 1045, 1046 [2011];Ivani v Ivani, 303 AD2d 639, 640 [2003]).
Contrary to the defendant's contentions, the Supreme Court providently exercised itsdiscretion in making its determination as to equitable distribution (see DeGroat v DeGroat, 84AD3d 1012, 1012 [2011]; Alper v Alper, 77 AD3d 694, 695 [2010]). The SupremeCourt considered the various statutory factors enumerated in Domestic Relations Law§ 236 (B) (5) (d), which include, inter alia, the income and property of eachparty at the time of marriage and at the time of the commencement of the action, theduration of the marriage, the age and health of both parties, any award of maintenance,the probable future financial circumstances of each party, and the wasteful dissipation ofassets by either spouse (seeHolterman v Holterman, 3 NY3d 1, 7 [2004]). The court identified as factors inits decision the plaintiff's health problems, that the defendant is in good health but suffersfrom substance abuse, that there is a substantial disparity in income between the parties,that the defendant has depleted marital assets, and that the parties have almost no liquidassets. We also note that no maintenance was awarded to the plaintiff in this case.
The record supports the Supreme Court's determination that the defendant wastefullydissipated substantial sums of money through his gambling and drug activity (seeO'Sullivan v O'Sullivan, 247 AD2d 597, 597 [1998]; Conceicao vConceicao, 203 AD2d 877, 879 [1994]; Wilner v Wilner, 192 AD2d 524,525 [1993]). Although the precise amount of marital funds dissipated through thedefendant's activities cannot be determined, the evidence presented at trial reveals, interalia, that the defendant was in and out of rehabilitation facilities for substance abuse,both inpatient and outpatient, from mid-2009 through the time of trial. The defendantalso acknowledged taking frequent trips to gambling casinos. The testimony alsorevealed that the defendant removed approximately $90,000 from the parties' Fidelityinvestment account, which was in the defendant's sole name but was marital property,and that, between 2009 and 2011, he also took over $90,000 out of an individualretirement account, and $30,000 from his Chase bank account, without being able toaccount for how he used the majority of such funds. In addition, despite the fact that thedefendant earned over $1,000,000 from 2009 to 2012, by the time of the trial, as theSupreme Court noted, the parties were left with almost no liquid assets. Thus, theSupreme Court did not err in awarding a greater share of the remaining marital assets tothe plaintiff (see Burnett vBurnett, 101 AD3d 1417, 1419 [2012]; Franco v Franco, 97 AD3d 785, 786 [2012]; Kaur v Singh, 44 AD3d622, 623 [2007]).
Contrary to the contention of the attorney for the children, under the circumstancesof this case, the defendant's arguments regarding the denial of those branches of hismotion which were to disqualify the attorney for the children and disallow her attorney'sfee may properly be reviewed on appeal. However, the Supreme Court properly deniedthose branches of the defendant's motion. The attorney for the child correctly contends,as she did in her papers filed in opposition to the defendant's motion, that the defendantlacks standing to seek disqualification and disallowance of her fee on the ground of legalmalpractice (see Drummond v Drummond, 291 AD2d 368, 369 [2002]; seealso Bluntt v O'Connor, 291 AD2d 106 [2002]). Furthermore, even if the defendanthad standing, the record supports the Supreme Court's conclusion that his arguments arewithout merit (see Drummond v Drummond, 291 AD2d at 369).
[*3] The Supreme Court also providently exercised itsdiscretion in denying the defendant's motion for recusal (see Vogelgesang vVogelgesang, 71 AD3d 1131 [2010]; Bibas v Bibas, 58 AD3d 586, 588-589 [2009]). Thedefendant did not assert any ground for legal disqualification under Judiciary Law§ 14. In addition, he failed to set forth any proof of bias or prejudice towarrant recusal.
With respect to its award of counsel fees to the plaintiff in the sum of $80,000, theSupreme Court noted that it took into consideration the defendant's substantially higherearnings and the equitable distribution between the parties, as well as the defendant's"erratic, unpredictable and uncooperative behavior throughout the litigation. . . and his lack of candor with respect to finances and his drug addiction,"which prolonged the litigation and caused the plaintiff to incur substantial counsel fees.Accordingly, the Supreme Court providently exercised its discretion in awarding counselfees to the plaintiff in the sum of $80,000 (see Paulson v Paulson, 107 AD3d 677, 677 [2013];Franco v Franco, 97 AD3d at 786-787; Costa v Costa, 46 AD3d 495, 496-497 [2007]).
The defendant's remaining contentions are without merit. Mastro, J.P., Sgroi, Cohenand Duffy, JJ., concur.
Separate motions by the plaintiff and the attorney for the children, inter alia, to strikestated portions of the appellant's brief on appeals from an order of the Supreme Court,Nassau County, dated March 13, 2013, and a judgment of divorce of the same courtdated April 17, 2013, on the ground that they raise issues that are not properly before thisCourt. By decision and order on motion dated March 4, 2014, the branches of themotions which were to strike stated portions of the appellant's brief were held inabeyance and referred to the panel of Justices hearing the appeals for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motions, the papers filed in oppositionthereto, and upon the submission of the appeals, it is
Ordered that the branches of the motions which were to strike stated portions of theappellant's brief are denied. Mastro, J.P., Sgroi, Cohen and Duffy, JJ., concur.