Opinion
1177 CA 18–00842
12-21-2018
Karen R. PECK, Plaintiff–Appellant, v. Donald E. PECK, Defendant–Respondent.
FINOCCHIO, ENGLISH & DORN, SYRACUSE (MARK ENGLISH OF COUNSEL), FOR PLAINTIFF–APPELLANT. MACHT, BRENIZER & GINGOLD, P.C., SYRACUSE (SARA E. LOWENGARD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
FINOCCHIO, ENGLISH & DORN, SYRACUSE (MARK ENGLISH OF COUNSEL), FOR PLAINTIFF–APPELLANT.
MACHT, BRENIZER & GINGOLD, P.C., SYRACUSE (SARA E. LOWENGARD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from a judgment of divorce that, inter alia, distributed the marital property between the parties and awarded her maintenance and attorney's fees. We affirm.
Contrary to plaintiff's contention, we conclude that Supreme Court did not err in setting the amount and duration of the maintenance award. "Although the authority of this Court in determining issues of maintenance is as broad as that of the trial court" ( D'Amato v. D'Amato, 132 A.D.3d 1424, 1425, 18 N.Y.S.3d 801 [4th Dept. 2015] ), "[a]s a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court" ( Gately v. Gately, 113 A.D.3d 1093, 1093, 978 N.Y.S.2d 550 [4th Dept. 2014], lv dismissed 23 N.Y.3d 1048, 992 N.Y.S.2d 782, 16 N.E.3d 1262 [2014] [internal quotation marks omitted] ). We perceive no abuse of discretion here. The court "properly considered plaintiff's ‘reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’ set forth in the statute" ( Wilkins v. Wilkins, 129 A.D.3d 1617, 1618, 12 N.Y.S.3d 451 [4th Dept. 2015], quoting Hartog v. Hartog, 85 N.Y.2d 36, 52, 623 N.Y.S.2d 537, 647 N.E.2d 749 [1995] ; see Domestic Relations Law § 236 [B] [former (6)(a) ] ), including the payor spouse's present and future earning capacity (see Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71 [2d Dept. 1999] ), and the equitable distribution of marital property (see Zufall v. Zufall, 109 A.D.3d 1135, 1136, 972 N.Y.S.2d 749 [4th Dept. 2013], lv denied 22 N.Y.3d 859, 2014 WL 113961 [2014] ). We decline to substitute our discretion for that of the court.
Contrary to plaintiff's further contention, the court did not abuse its discretion in ordering defendant to transfer funds from his retirement accounts to plaintiff's retirement accounts in order to equalize the value of the parties' respective retirement accounts (see Schiffmacher v. Schiffmacher, 21 A.D.3d 1386, 1386–1387, 801 N.Y.S.2d 848 [4th Dept. 2005] ). While it is well established that equitable distribution does not require equal distribution (see Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199 [1985] ; Schiffmacher, 21 A.D.3d at 1386, 801 N.Y.S.2d 848 ), we conclude that, here, equal distribution of the funds in the parties' retirement accounts is appropriate based on consideration of the pertinent statutory factors, as well as the substantial maintenance award and the equitable distribution of the other marital assets to plaintiff (see Robbins–Johnson v. Johnson, 20 A.D.3d 723, 725, 802 N.Y.S.2d 255 [3d Dept. 2005] ).
Finally, we reject plaintiff's contention that the court abused its discretion in awarding her only a portion of the requested amount of attorney's fees. In making its award of attorney's fees, the court took note of the substantial distribution of assets to plaintiff, as well as defendant's payment of plaintiff's living expenses and plaintiff's receipt of an unearned salary from defendant's business since the commencement of this action (see Shine v. Shine, 148 A.D.3d 1665, 1666, 50 N.Y.S.3d 645 [4th Dept. 2017] ; Gifford v. Gifford, 132 A.D.3d 1123, 1126, 19 N.Y.S.3d 102 [3d Dept. 2015] ). Thus, "the court's award of counsel fees was a proper exercise of discretion that is supported by ‘the equities of the case and the financial circumstances of the parties’ " ( Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1683, 12 N.Y.S.3d 684 [4th Dept. 2015] ).