Opinion
609 CA 17–01604
05-04-2018
Patti M. DECHOW, Plaintiff–Appellant, v. Terry DECHOW, Defendant–Respondent. (Appeal No. 1.)
HOGAN WILLIG, PLLC, AMHERST (STEVEN G. WISEMAN OF COUNSEL), FOR PLAINTIFF–APPELLANT. EMILY A. VELLA, SPRINGVILLE, FOR DEFENDANT–RESPONDENT.
HOGAN WILLIG, PLLC, AMHERST (STEVEN G. WISEMAN OF COUNSEL), FOR PLAINTIFF–APPELLANT.
EMILY A. VELLA, SPRINGVILLE, FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, plaintiff appeals from a judgment of divorce that, among other things, distributed the marital property between the parties. In appeal No. 2, plaintiff appeals from an order that awarded counsel fees to defendant.
We reject plaintiff's contention in appeal No. 1 that Supreme Court erred in awarding to defendant 50% of the marital portion of her 401K account and pension plan and 50% of the equity in the marital residence. Upon considering the requisite statutory factors set forth in Domestic Relations Law § 236(B)(5)(d) (see generally Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199 [1985] ; Majauskas v. Majauskas, 61 N.Y.2d 481, 492–493, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ; Alaimo v. Alaimo, 199 A.D.2d 1039, 1039–1040, 606 N.Y.S.2d 117 [4th Dept. 1993] ), we conclude that the court properly exercised its broad discretion in making an equitable distribution of the marital property (see Krolikowski v. Krolikowski, 110 A.D.3d 1449, 1450, 973 N.Y.S.2d 502 [4th Dept. 2013] ; Bossard v. Bossard, 199 A.D.2d 971, 971, 606 N.Y.S.2d 474 [4th Dept. 1993] ). We further conclude that, contrary to plaintiff's contention, the court did not err in the manner in which it credited her for payments that she made on the mortgage and taxes associated with the marital residence before and after commencement of this action (see generally Louzoun v. Montalto, 70 A.D.3d 652, 653–654, 893 N.Y.S.2d 630 [2d Dept. 2010], lv dismissed 15 N.Y.3d 838, 909 N.Y.S.2d 12, 935 N.E.2d 804 [2010] ; Martusewicz v. Martusewicz, 217 A.D.2d 926, 928, 630 N.Y.S.2d 156 [4th Dept. 1995], lv denied 88 N.Y.2d 801, 644 N.Y.S.2d 688, 667 N.E.2d 338 [1996] ).
We reject plaintiff's contention in appeal No. 2 that the court abused its discretion in awarding counsel fees to defendant. "An award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" ( Grant v. Grant, 71 A.D.3d 634, 634–635, 895 N.Y.S.2d 827 [2d Dept 2010] [internal quotation marks omitted]; see Gelia v. Gelia, 114 A.D.3d 1263, 1264, 980 N.Y.S.2d 859 [4th Dept. 2014] ). Here, the court properly considered the circumstances of the case, including the parties' relative financial circumstances and the merits of their positions during trial, and we conclude that the award is reasonable and does not constitute an abuse or improvident exercise of the court's discretion (see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1683, 12 N.Y.S.3d 684 [4th Dept. 2015] ; Gelia, 114 A.D.3d at 1264, 980 N.Y.S.2d 859 ).