Summary
In Aborn v Aborn (196 A.D.2d 561), the Second Department declined to apply the merger rule to a spouse's professional license where the licensee had dissolved what had once been a profitable professional partnership and had relocated his practice several times.
Summary of this case from McSparron v. McSparronOpinion
August 16, 1993
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the judgment is modified, on the law and the facts, (1) by deleting therefrom the provision awarding maintenance to the wife in the sum of $225 per week for a period of 10 years, and by substituting therefor a provision awarding maintenance to the wife in the sum of $150 per week for a period of seven years, (2) by deleting therefrom the provision requiring that the distributive award of $165,530.50 shall be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and by substituting therefor a provision requiring that the distributive award of $165,530.50 shall be paid in installments of $500 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and (3) by deleting therefrom the provision requiring that the award of $62,500 as and for counsel fees shall be paid in installments of $1,000 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged, and by substituting therefor a provision requiring that the award of $62,500 as and for counsel fees shall be paid in installments of $500 per month for a period of seven years and thereafter in installments of $2,000 per month until fully discharged; as so modified, the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the appeal from the order entered November 16, 1992, is dismissed, as that order was superseded by the order entered December 11, 1992, made upon reargument; and it is further,
Ordered that the order entered December 11, 1992, is reversed insofar as appealed from, on the law, so much of the order entered November 16, 1992, as denied that branch of the wife's motion for an award of appellate counsel fees is vacated, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and determination on the wife's request for an award of appellate counsel fees; and it is further,
Ordered that the plaintiff wife is awarded one bill of costs.
The husband contends that the Supreme Court failed to comply with Domestic Relations Law § 236 (B) (5) (g) by not making independent findings after trial. We do not agree. From our review of the record, we are satisfied that the statutory factors were considered by the Supreme Court and that its decision was not a verbatim adoption of the findings of fact which were submitted by the wife (see, Schammel v Schammel, 161 A.D.2d 407).
Additionally, we discern no error in the trial court's award of child support. The Child Support Standards Act requires that a formula be applied to statutorily-defined income to calculate the basic child support obligation and to apportion the pro rata share to be paid by a noncustodial parent, unless the court finds that such amount is unjust or inappropriate (see, Domestic Relations Law § 240 [1-b] [f]). Under the circumstances here present, we find that the court was correct in deciding not to follow the child support formula since the application of that provision would result in an "unjust and inappropriate" award.
However, with regard to the husband's challenge to the amount and duration of spousal maintenance awarded to the wife, we agree that a modification is warranted. Given the age, health, and educational and employment history of the wife, and upon considering, inter alia, the length of the marriage, the marital standard of living, the needs of the parties and the wife's current income (see, Domestic Relations Law § 236 [B] [6] [a]; Ramshaw v Ramshaw, 186 A.D.2d 243; De La Torre v De La Torre, 183 A.D.2d 744), we find that reductions in the amount of maintenance from $225 per week to $150 per week and in the duration of maintenance from 10 years to seven years is more in keeping with the marital standard of living, and will adequately serve the purpose of permitting the wife to obtain economic independence (see generally, O'Brien v O'Brien, 66 N.Y.2d 576, 585; Oswald v Oswald, 154 A.D.2d 817). Moreover, we note that the court could properly rely on the husband's established earning capacity in awarding maintenance, inasmuch as "an award of maintenance is not determined by actual earnings but, rather, by earning capacity" (Loeb v Loeb, 186 A.D.2d 174, 176; see, Kay v Kay, 37 N.Y.2d 632; Powers v Powers, 171 A.D.2d 737).
Additionally, while we find no error in the court's award to the wife of $165,530.50 as a distributive award and $62,500 as and for counsel fees, we conclude that the schedule of payment of the awards, as fixed by the court, may render the husband unable to meet his current living expenses (see generally, Mullin v Mullin, 187 A.D.2d 913; Kyle v Kyle, 156 A.D.2d 508). Accordingly, we have modified the schedule to reduce the monthly payments over the first seven years of the schedule to $500 per month for each award.
Furthermore, we find that the trial court properly considered and valued the husband's dental license. The husband dissolved a profitable professional partnership, declared personal bankruptcy, and relocated his practice a number of times shortly before the commencement of the divorce action. Hence, "the husband's license reemerged as a significant and separate asset" (Behrens v Behrens, 143 A.D.2d 617, 620; see, Wells v Wells, 177 A.D.2d 779).
Likewise, we find that the Supreme Court's award of appraiser's fees to the wife was a proper exercise of its discretion pursuant to Domestic Relations Law § 237.
We have considered the husband's remaining contentions and find them to be without merit.
Finally, the wife's request for counsel fees incurred in connection with the defense of this appeal is not properly before this Court. The application for an award of appellate counsel fees should be decided at the trial level, as the Appellate Division is not the appropriate forum for such a request (see, Taft v Taft, 135 A.D.2d 809; Gutman v Gutman, 24 A.D.2d 758). Accordingly, we remit the matter to the trial court for the purpose of conducting a hearing on that application. Sullivan, J.P., Balletta, Ritter and Santucci, JJ., concur.