Opinion
2015–11823 2016–02294 2016–05256 Index No. 26507/11
06-06-2018
Keith H. WEIDMAN, appellant-Respondent, v. Marnie I. WEIDMAN, respondent-Appellant.
Keith H. Weidman, Hauppauge, NY, appellant-respondent pro se. Howard B. Leff, Garden City, NY, for respondent-appellant.
Keith H. Weidman, Hauppauge, NY, appellant-respondent pro se.
Howard B. Leff, Garden City, NY, for respondent-appellant.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the plaintiff appeals from a decision of the Supreme Court, Suffolk County (Carol MacKenzie, J.), dated October 26, 2015, an order of the same court dated January 19, 2016, and a judgment of divorce of the same court entered April 14, 2016, and the defendant cross-appeals from the order and the judgment of divorce. The judgment of divorce, insofar as appealed from, upon the decision, made after a nonjury trial, directed the plaintiff to pay 70% of the parties' child's add-on expenses and future college expenses, awarded the defendant the sum of $250 per week in spousal maintenance for a period of 48 months, and awarded the defendant 50% of the marital property as her equitable share. The judgment of divorce, insofar as cross-appealed from, awarded the defendant the sum of only $10,442.91 for her contribution to the appreciation in value of the marital residence, and awarded the plaintiff his proportionate share of the defendant's retirement accounts. The order, insofar as appealed from, denied the plaintiff's application for an award of counsel fees and awarded the defendant counsel fees in the sum of $15,000. The order, insofar as cross-appealed from, granted the defendant's application for an award of counsel fees only to the extent of awarding her the sum of $15,000.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that on the Court's own motion, the notices of appeal and cross appeal from the order are treated as applications for leave to appeal and cross-appeal, and leave to appeal and cross-appeal are granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof awarding the defendant counsel fees in the sum of $15,000, and substituting therefor a provision awarding the defendant counsel fees in the sum of $40,000; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,
ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof directing the plaintiff to pay 70% and the defendant to pay 30% of the child's future college expenses, and substituting therefor a provision denying, as premature, the defendant's application to set forth the parties' responsibilities for future college expenses, (2) by adding a provision thereto to reflect that the plaintiff's obligation for payment of child support will end upon the child's emancipation, (3) by deleting the provision thereof awarding the defendant the sum of $10,442.91 for her contribution to the appreciation in value of the marital residence, and substituting therefor a provision awarding the defendant the sum of $108,500 for her contribution to the appreciation in value of the marital residence, and (4) by deleting the provision thereof awarding the defendant the sum of $130,000 for her marital share of certain real property located on Old Nichols Road, Islandia, and substituting therefor a provision awarding the defendant the sum of $34,942.91 for her marital share of that real property; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff and the defendant were married in 2000, and have one minor child. The plaintiff, who was admitted to the New York State Bar in 1986, is a solo practitioner with a general law practice. After the birth of the parties' child, the defendant did not return to her full-time teaching position, but worked on a part-time basis earning approximately $30,000 annually. In September 2011, the plaintiff commenced this action for a divorce and ancillary relief. On August 20, 2015, the parties executed a custody and parenting time agreement in which they agreed to joint legal custody of the child, that the defendant would have residential custody, and that the plaintiff would have liberal parenting time. Thereafter, the action proceeded to trial on the issues of child support, maintenance, and equitable distribution of marital property. The parties agreed to post-trial submissions of counsel fee applications. In the order appealed from, the Supreme Court denied the plaintiff's application for an award of counsel fees, and granted the defendant's application for an award of counsel fees to the extent of awarding her the sum of $15,000. A judgment of divorce was entered on April 14, 2016. The plaintiff appeals, and the defendant cross-appeals, from the order and the judgment of divorce.
At trial, the plaintiff stipulated that his income was $100,000 for child support purposes, and does not raise any contentions with respect to the amount of his basic child support obligation, which the Supreme Court calculated was $259.44 per week (see Domestic Relations Law § 240[1–b] ). We agree with the court's directive that the plaintiff pay his pro rata share (70%) of the child's add-on expenses (see Bruzzese v. Bruzzese, 152 A.D.3d 563, 565, 61 N.Y.S.3d 18 ; Matter of Byrne v. Byrne, 46 A.D.3d 812, 815, 848 N.Y.S.2d 319 ; Griggs v. Griggs, 44 A.D.3d 710, 713–714, 844 N.Y.S.2d 351 ). The court, however, should have denied, as premature, the defendant's request to allocate between the parties responsibility for the future college expenses of the parties' then 13–year–old child (see Marin v. Marin, 148 A.D.3d 1132, 1136, 51 N.Y.S.3d 111 ; Repetti v. Repetti, 147 A.D.3d 1094, 1097, 47 N.Y.S.3d 447 ; Dochter v. Dochter, 118 A.D.3d 665, 666, 986 N.Y.S.2d 357 ; Bogannam v. Bogannam, 60 A.D.3d 985, 986, 877 N.Y.S.2d 336 ). Additionally, the plaintiff correctly asserts that the judgment should be modified to reflect that the plaintiff's obligation for child support will end upon the child's emancipation (see Curatola v. Curatola, 43 A.D.3d 974, 976, 842 N.Y.S.2d 520 ).
In light of the plaintiff's stipulation regarding the amount of income for child support purposes, the Supreme Court providently exercised its discretion in imputing income of $100,000 to him for maintenance purposes (see e.g. Volkerick v. Volkerick, 153 A.D.3d 885, 886, 60 N.Y.S.3d 335 ; Diaz v. Diaz, 129 A.D.3d 658, 659, 10 N.Y.S.3d 314 ). The provisions of Domestic Relations Law § 236(B)(6)(a) that were in effect at the time of the commencement of the parties' action for divorce provided that "except where there is a valid agreement with respect to maintenance, the court may order maintenance ‘in such amount as justice requires’ " ( Maddaloni v. Maddaloni, 142 A.D.3d 646, 653, 36 N.Y.S.3d 695, quoting Domestic Relations Law former § 236[B][6][a] ; see Margolis v. Cohen, 153 A.D.3d 1390, 1393, 61 N.Y.S.3d 328 ). The amount and duration 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 D'Alauro v. D'Alauro, 150 A.D.3d 675, 676, 53 N.Y.S.3d 362 ; Gafycz v. Gafycz, 148 A.D.3d 679, 679, 48 N.Y.S.3d 464 ). The factors to be considered are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to become self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties (see Domestic Relations Law former § 236[B][6][a] ; Chaudry v. Chaudry, 95 A.D.3d 1058, 1059, 945 N.Y.S.2d 110 ). Here, considering the relevant factors, awarding the defendant maintenance in the sum of $250 per week for a period of 48 months was a provident exercise of discretion.
The trial court is vested with broad discretion in making an equitable distribution of marital property and, unless it can be shown that the court improvidently exercised its discretion, its determination should not be disturbed (see Madu v. Madu, 135 A.D.3d 836, 836, 24 N.Y.S.3d 678 ; Lewis v. Lewis, 118 A.D.3d 958, 959–960, 989 N.Y.S.2d 64 ).
The record supports the Supreme Court's determination that the defendant did not engage in egregious conduct sufficient to affect the equitable distribution award (see Howard S. v. Lillian S., 14 N.Y.3d 431, 435–436, 902 N.Y.S.2d 17, 928 N.E.2d 399 ; O'Brien v. O'Brien, 66 N.Y.2d 576, 589–590, 498 N.Y.S.2d 743, 489 N.E.2d 712 ; Czaban v. Czaban, 44 A.D.3d 894, 895, 844 N.Y.S.2d 383 ; Levine v. Levine, 37 A.D.3d 550, 551, 830 N.Y.S.2d 252 ; Blickstein v. Blickstein, 99 A.D.2d 287, 292, 472 N.Y.S.2d 110 ).
We see no reason to disturb the Supreme Court's equitable distribution of a portion of a contingency fee that the plaintiff was paid after commencement of this action (see Block v. Block, 258 A.D.2d 324, 325, 685 N.Y.S.2d 443 ; Blechman v. Blechman, 234 A.D.2d 693, 695–696, 650 N.Y.S.2d 456 ). The plaintiff had agreed to accept a lump sum payment of $34,971, as well as a $240,000 structured settlement, as his attorney's fee in a case on which he worked from January 2004, through the beginning of January 2013. The court found that only the $240,000 structured settlement earned prior to commencement was marital property, to reflect that the defendant was not entitled to compensation for the work the plaintiff performed after the commencement of this action (see Klauer v. Abeliovich, 149 A.D.3d 617, 623–624, 53 N.Y.S.3d 37 ; Kriftcher v. Kriftcher, 59 A.D.3d 392, 393, 874 N.Y.S.2d 153 ). The court properly determined that the defendant's equitable share of the structured settlement payments was 50%, and that her distributive award should be reduced by 15% to account for the plaintiff's income tax liability (see Huffman v. Huffman, 84 A.D.3d 875, 877, 923 N.Y.S.2d 583 ). Moreover, the plaintiff's contention that the court engaged in "double counting" by distributing a portion of the contingency fee to the defendant in addition to maintenance is without merit, as the plaintiff's income for purposes of determining maintenance was based on imputation of his income admitted for purposes of child support. The contingency fee in the form of a structured settlement was treated as a one-time bonus outside the $100,000 of imputed income (see Keane v. Keane, 8 N.Y.3d 115, 121, 828 N.Y.S.2d 283, 861 N.E.2d 98 ; Palydowycz v. Palydowycz, 138 A.D.3d 810, 812, 29 N.Y.S.3d 479 ; Sutaria v. Sutaria, 123 A.D.3d 909, 911, 2 N.Y.S.3d 124 ; Weintraub v. Weintraub, 79 A.D.3d 856, 857, 912 N.Y.S.2d 674 ).
Additionally, the Supreme Court providently exercised its discretion in awarding the plaintiff his proportionate share of the defendant's retirement accounts pursuant to the formula established in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 ; see Scheriff v. Scheriff, 152 A.D.3d 724, 725, 60 N.Y.S.3d 185 ; Minervini v. Minervini, 152 A.D.3d 666, 667–668, 58 N.Y.S.3d 568. The plaintiff requested that the court award him a portion of the defendant's retirement accounts (cf. Halley–Boyce v. Boyce, 108 A.D.3d 503, 505, 969 N.Y.S.2d 467 ; Leichtner v. Leichtner, 18 A.D.3d 446, 446, 794 N.Y.S.2d 440 ; LeVigne v. LeVigne, 220 A.D.2d 561, 562, 632 N.Y.S.2d 610 ), and he met his burden of proving the value of the retirement accounts (cf. Repetti v. Repetti, 147 A.D.3d at 1099, 47 N.Y.S.3d 447; Seckler–Roode v. Roode, 36 A.D.3d 889, 890, 830 N.Y.S.2d 211 ).
We agree with the Supreme Court's determination that the defendant was entitled to an equitable share of the appreciation in the value of the marital residence over the course of the marriage, notwithstanding that the residence was the separate property of the plaintiff. "When the nontitled spouse makes direct financial contributions to the property and/or direct nonfinancial contributions to the property ‘such as by personally maintaining, making improvements to, or renovating a marital residence,’ or the appreciation is the result of both parties' efforts, appreciation due to those efforts constitutes marital property subject to equitable distribution" ( Bernholc v. Bornstein, 72 A.D.3d 625, 628, 898 N.Y.S.2d 228, quoting Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 ; see Jones v. Jones, 92 A.D.3d 845, 847, 939 N.Y.S.2d 510 ). The record establishes that the appreciation in the value of the marital residence was attributable to the joint efforts of both parties (see Scher v. Scher, 91 A.D.3d 842, 845, 938 N.Y.S.2d 317 ; Mongelli v. Mongelli, 68 A.D.3d 1070, 1072, 892 N.Y.S.2d 471 ).
It was within the Supreme Court's discretion to accept the testimony of the defendant's expert that the marital residence had appreciated in value by $217,000 over the course of the marriage (see Diaco v. Diaco, 278 A.D.2d 358, 359, 717 N.Y.S.2d 635 ). However, we disagree with the court's determination to deduct $65,114.81 as the amount of the outstanding mortgage, since it was undisputed that all encumbrances on the marital residence had been satisfied prior to the commencement of the divorce action (see Beroza v. Hendler, 71 A.D.3d 615, 617–618, 896 N.Y.S.2d 144 ). Moreover, the plaintiff was not entitled to a credit in the sum of $131,000 for his contribution to the purchase of the marital residence. The marital residence was the plaintiff's separate property, except that only the appreciation of the marital residence constituted marital property subject to equitable distribution (see generally Fields v. Fields, 15 N.Y.3d 158, 167, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ). Accordingly, the defendant is entitled to an award in the sum of $108,500 for her 50% share in the increased value of the marital residence.
The defendant acknowledges that her distributive award for the value of her marital share of certain real property located on Old Nichols Road in Islandia should be reduced by the sum of $65,114.18, to reflect the outstanding principal balance of the mortgage loan at the time of the trial (see Kilkenny v. Kilkenny, 54 A.D.3d 816, 819, 863 N.Y.S.2d 807 ; Newman v. Newman, 35 A.D.3d 418, 419, 825 N.Y.S.2d 714 ), as well as that the plaintiff was entitled to a separate property credit in the sum of $200,000 for the separate funds used to purchase the subject real property (see Ahearn v. Ahearn, 137 A.D.3d 719, 720, 26 N.Y.S.3d 566 ; Midy v. Midy, 45 A.D.3d 543, 544–545, 846 N.Y.S.2d 220 ). Accordingly, we reduce the defendant's distributive award for the value of her 50% marital share of the subject real property from $130,000 to $34,942.91.
For matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory "rebuttable presumption that counsel fees shall be awarded to the less monied spouse" ( Domestic Relations Law § 237[a] ; see L 2010, ch 329, §§ 1, 3; ch 415; see also Teaney v. Teaney, 138 A.D.3d 1301, 1303, 29 N.Y.S.3d 668 ; Vantine v. Vantine, 125 A.D.3d 1259, 1262, 4 N.Y.S.3d 375 ). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case" ( DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 ). In addition, the court may take into account whether either party has delayed the proceedings or engaged in unnecessary litigation (see Margolis v. Cohen, 153 A.D.3d at 1393, 61 N.Y.S.3d 328 ; Bruzzese v. Bruzzese, 152 A.D.3d at 566, 61 N.Y.S.3d 18 ; Marin v. Marin, 148 A.D.3d at 1136, 51 N.Y.S.3d 111 ). Here, as the plaintiff failed to rebut the presumption that the defendant, the less monied spouse, was entitled to counsel fees, the Supreme Court providently exercised its discretion in granting the defendant's application and denying the plaintiff's application. However, considering the overall financial circumstances of the parties and each party's conduct during the course of the litigation, the court should have awarded the defendant counsel fees in the sum of $40,000 (see Straub v. Straub, 155 A.D.3d 919, 920, 63 N.Y.S.3d 688 ; Ostrower v. Ostrower, 148 A.D.3d 819, 820, 49 N.Y.S.3d 155 ; Guzzo v. Guzzo, 110 A.D.3d 765, 766, 973 N.Y.S.2d 265 ).
The plaintiff's remaining contentions are either unpreserved for appellate review, academic, or without merit.
ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.