Opinion
2017–09521 Index No. 30167/12
08-19-2020
Richard ZEHNER, Respondent, v. AnnMarie ZEHNER, Appellant.
Barnes, Catterson, LoFrumento & Barnes, LLP, Garden City, N.Y. (Michael F. LoFrumento of counsel), for appellant. Heilig, Branigan, Miller & Castrovinci, Holbrook, N.Y. (Philip Castrovinci and Michael J. Miller of counsel), for respondent.
Barnes, Catterson, LoFrumento & Barnes, LLP, Garden City, N.Y. (Michael F. LoFrumento of counsel), for appellant.
Heilig, Branigan, Miller & Castrovinci, Holbrook, N.Y. (Philip Castrovinci and Michael J. Miller of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (James F. Quinn, J.), entered July 7, 2017. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated January 18, 2017, made after a nonjury trial, awarded the defendant maintenance in the sum of only $2,000 per month for a period of only seven years and awarded the defendant an attorney's fee in the sum of only $17,500.
ORDERED that the judgment of divorce is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the defendant maintenance in the sum of $2,000 per month for a period of seven years, and substituting therefor a provision awarding the defendant maintenance in the sum of $3,000 per month until the defendant becomes eligible to receive full social security benefits, and (2) deleting the provision thereof awarding the defendant an attorney's fee in the sum of $17,500, and substituting therefor a provision awarding the defendant an attorney's fee in the sum of $30,000; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.
The parties were married in 1991, and have two emancipated children. During the marriage, the plaintiff was steadily employed, while the defendant was the primary homemaker and caregiver for the parties' children. The plaintiff commenced this action for a divorce and ancillary relief in September 2012. After a nonjury trial, the Supreme Court issued a judgment of divorce dated July 7, 2017, which, among other things, awarded the defendant maintenance in the sum of $2,000 per month for a period of seven years and awarded the defendant an attorney's fee in the sum of $17,500. The defendant appeals.
The " ‘amount and duration of maintenance is a matter committed to the sound discretion of the court, and every case must be determined on its own unique facts’ " ( Murphy v. Murphy, 175 A.D.3d 1540, 1541, 109 N.Y.S.3d 429, quoting Grasso v. Grasso, 47 A.D.3d 762, 764, 851 N.Y.S.2d 213 ). "Where, as here, an action was commenced prior to the amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), the factors to be considered include 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 be 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" ( Alliger–Bograd v. Bograd, 180 A.D.3d 975, 978, 118 N.Y.S.3d 720 [internal quotation marks omitted]; see Domestic Relations Law former § 236[b][6][a] ). This Court's authority in determining the issue of maintenance is as broad as that of the trial court (see DiNozzi v. DiNozzi, 74 A.D.3d 866, 867, 902 N.Y.S.2d 647 ).
Here, the Supreme Court improvidently exercised its discretion in awarding maintenance to the defendant in the sum of only $2,000 for a period of only seven years. Taking into account the length of the marriage and the facts that the defendant was 58 years old at the time of trial, had been absent from the workforce for more than 20 years, had limited employment history and level of education, and suffered from physical and mental health issues, "it is unrealistic to believe" that the defendant will be able to achieve a "level of financial independence which would eliminate" her need to rely on the plaintiff's support ( D'Iorio v. D'Iorio, 135 A.D.3d 693, 696, 24 N.Y.S.3d 325 [internal quotation marks omitted]; see Marin v. Marin, 148 A.D.3d 1132, 1135, 51 N.Y.S.3d 111 ). Furthermore, the court improvidently exercised its discretion in imputing income to the defendant in the sum of $30,000 for the purpose of calculating maintenance, since there was no evidence that her past income or demonstrated future potential earning capacity amounted to $30,000 or any amount close to that (see O'Brien v. O'Brien, 163 A.D.3d 694, 695, 81 N.Y.S.3d 417 ; D'Amico v. D'Amico, 66 A.D.3d 951, 951–952, 887 N.Y.S.2d 675 ). Under the circumstances, we conclude that an award of maintenance in the sum of $3,000 per month until the defendant becomes eligible to receive full social security retirement benefits is appropriate (see Beyel v. Beyel, 173 A.D.3d 1129, 1130, 105 N.Y.S.3d 526 ).
"The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" ( Klein v. Klein, 178 A.D.3d 802, 805, 116 N.Y.S.3d 92 ; see DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 ; Beyel v. Beyel, 173 A.D.3d at 1130, 105 N.Y.S.3d 526 ). In exercising its discretion, a court should " ‘review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions’ " ( Duval v. Duval, 144 A.D.3d at 743, 40 N.Y.S.3d 535, quoting DeCabrera v. Cabrera–Rosete, 70 N.Y.2d at 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 ). In addition, the court may "consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" ( Prichep v. Prichep, 52 A.D.3d 61, 64, 858 N.Y.S.2d 667 ; see Margolis v. Cohen, 153 A.D.3d 1390, 1390, 61 N.Y.S.3d 328 ). Here, considering the overall financial circumstances of the parties and the circumstances of the case as a whole, we conclude that the Supreme Court should have awarded the defendant an attorney's fee in the sum of $30,000 (see Giallo–Uvino v. Uvino, 165 A.D.3d 894, 897, 86 N.Y.S.3d 125 ; Marin v. Marin, 148 A.D.3d at 1136, 51 N.Y.S.3d 111 ).
LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.