Opinion
October 21, 1985
Appeal from the Supreme Court, Kings County (Rigler, J.).
Judgment affirmed, insofar as appealed from, with costs.
Pursuant to a 1980 order of support of the Family Court, Kings County, plaintiff was awarded $375 weekly for maintenance and child support for the couple's two minor children. By judgment dated September 12, 1984, the parties obtained a mutual divorce. In addition, the court set arrears under the Family Court order at $60,000, awarded each party 50% of the jointly owned marital premises, and directed defendant to convey his share of the premises, which the court valued at $60,000, to plaintiff "in satisfaction of the said arrears and as part of the Court's award for distribution of the marital property". Defendant's monetary obligations under the order of support were continued, with the proviso that maintenance payments of $75 per week were to terminate one year from the service of the judgment.
The trial court did not err in refusing to deny plaintiff maintenance because she committed marital fault (see, Blickstein v Blickstein, 99 A.D.2d 287, appeal dismissed 62 N.Y.2d 802).
Furthermore, while equitable distribution, even of property held jointly by the parties, does not necessarily mean equal distribution (Sementilli v Sementilli, 102 A.D.2d 78; Rodgers v Rodgers, 98 A.D.2d 386, appeal dismissed 62 N.Y.2d 646), viewing the record as a whole in light of the factors enumerated in Domestic Relations Law § 236 (B) (5) (d), the trial court properly distributed the jointly owned marital premises equally. It was proper to direct defendant to convey his share of the marital premises to plaintiff "in satisfaction of the said arrears and as part of the Court's award for distribution of the marital property". "Although the Family Court may be the preferred forum for child support matters * * * here, where the record established substantial arrears and the Supreme Court is entertaining an action involving disposition of all of the parties' assets, a comprehensive arrangement covering the arrears is appropriate" (Sementilli v Sementilli, supra, at p 84).
As to the court's award of counsel fees, clearly the record supports the conclusion that defendant is far better able to afford those fees than plaintiff. Thus the trial court's exercise of discretion under Domestic Relations Law § 237 will not now be disturbed. Also, although plaintiff's attorney's request for fees in excess of $32,000 did include fees for services rendered during prior Family Court proceedings, which could not have properly been awarded at bar (Abrusci v Abrusci, 79 A.D.2d 980; Mattana v Mattana, 79 A.D.2d 702, appeal dismissed 53 N.Y.2d 937; Murena v Murena, 75 A.D.2d 640), the amount of counsel fees actually awarded constitutes approximately one third of the amount requested. Thus defendant's contention that the court's award included certain nonrecoverable fees is devoid of merit.
We have reviewed defendant's remaining contentions and find them equally without merit. Mollen, P.J., Thompson, Bracken and O'Connor, JJ., concur.