| Gillman v Gillman |
| 2016 NY Slip Op 03470 [139 AD3d 667] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Deborah Gillman, Appellant, v Lance E.Gillman, Respondent. |
The Sallah Law Firm, P.C., Holtsville, NY (Dean J. Sallah and Patrick M. Kerr ofcounsel), for appellant.
Mischel & Horn, P.C., New York, NY (Scott T. Horn of counsel), forrespondent.
Appeal from stated portions of a judgment of the Supreme Court, Suffolk County(Carol MacKenzie, J.), entered March 13, 2014. The judgment, insofar as appealed from,upon a decision of that court dated September 12, 2013, made after a nonjury trial, interalia, (a) awarded the plaintiff the sum of only $836.75 per week in child support, (b)awarded the plaintiff maintenance only until she reaches the age of 60, (c) directed thatthe parties equally share the repayment of the $28,000 balance of a loan, (d) failed todirect the defendant to maintain a life insurance policy to secure the plaintiff's interest inmaintenance and child support payments, (e) failed to direct the defendant to pay anyportion of the children's college tuition, (f) failed to direct the defendant to pay themortgage arrears on the marital residence, and (g) failed to direct the defendant to payone half of the value of his life insurance policies and Prudential and Qualcomm stocksto the plaintiff.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof awarding child support, (2) by deletingthe provision thereof directing the defendant to pay maintenance until the plaintiffreaches the age of 60, and substituting therefor a provision directing the defendant to paymaintenance until the earliest of the plaintiff's eligibility for full Social Security benefits,her remarriage or cohabitation pursuant to Domestic Relations Law § 248,or the death of either party, (3) by adding a provision thereto directing the defendant tomaintain a life insurance policy for the benefit of the plaintiff, until payment of childsupport and maintenance is completed, in an amount sufficient to secure thoseobligations, (4) by adding a provision thereto directing the defendant to pay the plaintiffone half of the value of his Prudential and Qualcomm stock, and (5) by adding aprovision thereto directing the defendant to pay the mortgage arrears on the maritalresidence; as so modified, the judgment is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for a newdetermination of the amount of the defendant's child support obligation, which amountshall be made retroactive to March 3, 2014; and it is further,
[*2] Ordered that pending a new determination by theSupreme Court of the child support payments to be made by the defendant, the childsupport payment to be paid by the defendant, as set forth in the judgment appealed from,shall remain in effect.
The plaintiff and the defendant were married in 1986, and have three children. At thetime of the trial, none of the children was emancipated, although the parties' twins were19 years old. Throughout the marriage, the defendant (born in 1959) was steadilyemployed, while the plaintiff (born in 1960) was the primary caregiver for the childrenand a homemaker. In 2005, the plaintiff started a home-decorating business out of themarital residence that generated an annual income of a few thousand dollars. Afterapproximately 26 years of marriage, the plaintiff commenced this action for a divorceand ancillary relief. The parties agreed that the plaintiff would have sole custody of theparties' youngest child, who was 14 years old. A nonjury trial was conducted to resolvethe issues of maintenance, child support, and equitable distribution of certain assets.Following the trial, the Supreme Court, inter alia, (1) awarded the plaintiff the sum of$836.75 per week in child support, (2) awarded the plaintiff maintenance in the sum of$4,000 per month until she reaches the age of 60, and (3) directed that the parties equallyshare the repayment of the $28,000 balance of a loan. The plaintiff appeals from theseportions of the judgment, as well as from the court's failure to direct the defendant to payany portion of the children's college tuition, to bring the mortgage payments on themarital residence current, to maintain a life insurance policy to secure her interest in themaintenance and child support payments, and to pay one half of the cash-surrender valueof his life insurance policies and Prudential and Qualcomm stocks.
Initially, in awarding the plaintiff $836.75 per week in child support, the SupremeCourt failed to sufficiently articulate its reasons for capping the combined parentalincome at $176,000. "The Child Support Standards Act (see Domestic RelationsLaw § 240 [1-b]) sets forth a formula for calculating child support byapplying a designated statutory percentage, based upon the number of children to besupported, to combined parental income up to the statutory cap that is in effect at the timeof the judgment" (McCoy vMcCoy, 107 AD3d 857, 858 [2013]; see Holterman v Holterman, 3 NY3d 1, 11 [2004]), here,$136,000 (see Social Services Law § 111-i [2] [b]). For incomeexceeding $136,000, the court has broad discretion to apply the statutory child supportpercentage, or to apply the factors set forth in Domestic Relations Law§ 240 (1-b) (f), or to apply both (see Matter of Cassano v Cassano,85 NY2d 649, 654 [1995]). The court must " 'articulate its reason or reasons for[that determination], which should reflect a careful consideration of the stated basis forits exercise of discretion, the parties' circumstances, and its reasoning why there [shouldor] should not be a departure from the prescribed percentage' " (McCoy vMcCoy, 107 AD3d at 858, quoting Wagner v Dunetz, 299 AD2d 347,350-351 [2002] [internal quotation marks omitted]. Here, while the Supreme Court statedthat it considered some of the relevant factors, including the children's lifestyle duringthe marriage, the court failed to adequately articulate how these factors applied to theparticular circumstances of this case and how it decided that $176,000, an amount lessthan the defendant's 2013 base salary of $181,000, was an appropriate limit on which tobase his child support obligation (see McCoy v McCoy, 107 AD3d at 858). Forinstance, the record does not reflect that the court considered or gave sufficient weight to,among other things, the fact that the twins were not planning to return to college, werefinancially dependent upon their parents, and would be living at home full-time with theplaintiff. Therefore, it is appropriate to remit the matter to the Supreme Court to enable itto further articulate how the factors set forth in Domestic Relations Law§ 240 (1-b) (f) support its determination capping the combined parentalincome for the purpose of calculating child support (see Schack v Schack, 128 AD3d 941, 942-943 [2015]; Hymowitz v Hymowitz, 119AD3d 736, 742 [2014]; McCoy v McCoy, 107 AD3d at 858).
Next, insofar as the plaintiff challenges the duration of the maintenance award, theduration of maintenance is a matter committed to the sound discretion of the trial court,and every case must be determined on its unique facts (see Lamparillo v Lamparillo,130 AD3d 580, 581 [2015]; Hainsworth v Hainsworth, 118 AD3d 747, 748 [2014]; Marley v Marley, 106 AD3d961, 962 [2013]; Giokas vGiokas, 73 AD3d 688, 688 [2010]). "The factors to be considered in amaintenance award are, among others, the standard of living of the parties, the incomeand property of the parties, the distribution of property, the duration of the marriage, thehealth of the parties, the present and future earning capacity of the parties, the ability ofthe party seeking maintenance to be self-supporting, the reduced [*3]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]; see Domestic Relations Law § 236 [B][6] [a]). In general, an award of maintenance should be of a duration sufficient to permitthe recipient to achieve economic independence (see O'Brien v O'Brien, 66 NY2d576, 585 [1985]; DiBlasi vDiBlasi, 48 AD3d 403, 404 [2008]). Here, the Supreme Court improvidentlyexercised its discretion in determining that the maintenance award should terminate whenthe plaintiff reaches the age of 60. Even though the plaintiff recently started a decoratingbusiness out of her home which provides her with some earning potential, in light of theparties' long-term marriage, respective ages, financial circumstances, and the plaintiff'slimited work experience, it is unrealistic to believe that she will be able to achieve a"level of financial independence which would eliminate" her need to rely on thedefendant's support (D'Iorio vD'Iorio, 135 AD3d 693, 696 [2016], quoting Kret v Kret, 222 AD2d412, 412 [1995]; see Hymowitz v Hymowitz, 119 AD3d at 742; Marley vMarley, 106 AD3d at 962; Giokas v Giokas, 73 AD3d at 688). Accordingly,the duration of the plaintiff's maintenance should be until the earliest of her eligibility forfull Social Security retirement benefits, her remarriage or cohabitation pursuant toDomestic Relations Law § 248, or the death of either party (see D'Ioriov D'Iorio, 135 AD3d at 696; Hymowitz v Hymowitz, 119 AD3d at 742;Marley v Marley, 106 AD3d at 962-963; Giokas v Giokas, 73 AD3d at688).
In addition, the Supreme Court should have directed that the defendant maintain lifeinsurance with the plaintiff as the named beneficiary in an amount sufficient to secure hischild support and maintenance obligations (see Domestic Relations Law§ 236 [B] [8] [a]; Hartog v Hartog, 85 NY2d 36, 50 [1995];Hainsworth v Hainsworth, 118 AD3d at 749; Baron v Baron, 71 AD3d 807, 810 [2010]).
Contrary to the plaintiff's contention, the Supreme Court providently exercised itsdiscretion in directing that the parties share in the responsibility of repaying the $28,000balance of a loan provided by the husband's mother. Financial liabilities" 'incurred prior to the commencement of a divorce action constitute marital debtand should be equally shared by the parties' " (Mosso v Mosso, 84 AD3d757, 760 [2011], quoting Bogdan v Bogdan, 260 AD2d 521, 522 [1999];see Domestic Relations Law § 236 [B] [1] [c]). Here, the recordestablished that the proceeds of the loan were used to improve the marital residence and,therefore, constituted marital debt (see Mosso v Mosso, 84 AD3d at 760;Bogdan v Bogdan, 260 AD2d at 522; cf. Milnes v Milnes, 50 AD3d 750, 751 [2008]).
The Supreme Court erred in failing to direct the defendant to pay one-half of thevalue of his Prudential and Qualcomm stocks to the plaintiff given that the courtrecognized that the parties stipulated to dividing these marital assets equally (seeCusimano v Cusimano, 149 AD2d 397, 398 [1989]).
Furthermore, under the circumstances of this case, the Supreme Court should havegranted the plaintiff's request to direct the defendant to pay the mortgage arrears on themarital residence (see Sember vSember, 72 AD3d 1150, 1151-1152 [2010]).
The plaintiff's remaining contentions are without merit. Hall, J.P., Austin, Sgroi andLaSalle, JJ., concur.