112 Misc. 2d 799 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
This motion by defendant for an order pursuant to section 237 of the Domestic Relations Law directing plaintiff to pay defendant her costs in retaining an actuary and an appraiser is granted as set forth below.
Plaintiff and defendant were married in 1955; there are three children of the marriage, two of whom are emancipated and one of whom is away at college. The parties reside in the jointly owned marital home on which plaintiff pays the carrying charges. He also pays one half of defendant’s automobile expenses and gives her $150 per week for food and personal expenses. According to documentation supplied by defendant, plaintiff’s annual income is approximately $80,000. He also has approximately $25,000 invested in stocks, certificates of deposit and other bank paper. Defendant is completing work experience requirements for certification as a psychologist, and in addition to moneys provided by plaintiff, has income of approximately $10,000 per year from part-time college teaching and private practice as a psychotherapist. Defendant claims that most of this income is used for business- or education-related expenses.
Both parties by their pleadings will be seeking equitable distribution of the marital property upon dissolution of the marriage. Plaintiff is a fully vested member of his pension
The question as to whether interest in a pension plan is marital property was answered in the affirmative by this court in Martinez v Martinez (NYU, Oct. 13,1981, p 17, col 5) following a full trial. The final determination as to whether this particular pension is marital property must of necessity await a showing by competent evidence at trial; but it is clear that, in this marriage of some 27 years’ duration, this asset will be of considerable importance when distributing the marital property. The value of a pension under the circumstances presented here can be quite substantial (see Troyan, Pensions & Equitable Distribution, 1 Equitable Distribution Rep 13) and “[t]o work from a benefits book or benefits statement is unconscionable.” Moreover, with respect to any marital property, the court is under a mandate to see that it is equitably distributed and “the evaluation of that marital property is essential if the court is to be able to carry out that requirement.” (Fay v Fay, 108 Misc 2d 373.)
Plaintiff asserts that a simple percentage division of the marital residence and pension interest is the only determination that the court need make and that there is, therefore, no need for the court or the parties to know the actual dollar value of either asset. Quite the contrary is true, particularly because one of the properties involved — the
The only question remaining is whether defendant is in a position to pay for her own litigation expenses. It appears she is endeavoring to become self-supporting, and is clearly not indigent, particularly since plaintiff is providing for her maintenance during the pendency of this action. Such factors are not dispositive, however (cf. Kaplan v Kaplan, 77 AD2d 891, app dsmd 51 NY2d 822). There is a need for the relief defendant requests, and under the circumstances of the case and the parties, the burden of obtaining it is
Defendant is entitled to an interim award of $350 to cover her expenses in hiring an actuary and $150 to cover her expenses in hiring a real estate appraiser.