MARIANNE QUINN, Aрpellant-Respondent, v DAVID E. QUINN, Respondent-Appellant.
Supreme Court, Appellate Division, Third Department, New York
April 9, 2009
876 N.Y.S.2d 720
The parties were married in 1991 and have two children (born in 1993 and 1996). In December 2005, plaintiff commenced this divorce action. Prior to trial, the parties agreed that defendant would not oppose plaintiff‘s grounds for divorce and executed stipulations resolving the issues of custody and valuation of the marital assets. They also executed a discovery and fee stipulation which, in relevant part, permitted plaintiff to use a specific account for certain counsel and expert fees and empowered Supreme Court to determine whether the used portion of the funds would be credited against plaintiff‘s equitable distribution award or charged to defendant.
Following a bench trial, Supreme Court issued a decision and order which, among other things, awarded maintenance to plaintiff in the amount of $10,000 per month for 12 years, set defendant‘s monthly child support obligation at $8,058, and distributed the marital assets. Overall, the parties’ marital assets were distributed equally, with the exception of defendant‘s medical business, of which plaintiff was awarded 30% of the stipulated value. This decision and order was incorporated, along with the parties’ prior stipulations, into a judgment of
We first address plaintiff‘s contention that Supreme Court erred in failing to equally distribute defendant‘s medical business. Supreme Court is vested with “substantial discretion in determining what distribution of mаrital property will be equitable under all the circumstances” (Farrell v Cleary-Farrell, 306 AD2d 597, 599 [2003], quoting Owens v Owens, 288 AD2d 782, 783 [2001]), and “there is no requirement that the distribution of each item of marital property be on an equal or 50-50 basis” (Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]; see Corbett v Corbett, 6 AD3d 766, 767 [2004]).
Here, Supreme Court examined and set forth the circumstances of the parties and the pertinent statutory factors it considered in deciding to distribute to plaintiff 30% of the value of defendant‘s interest in the medical business (see
Next, plaintiff challenges Supreme Court‘s decision to charge against her equitable distribution award $70,262 in assets withdrawn from a joint First Niagara Bank account. At trial, plaintiff testified that, shortly after defendant‘s departure from the marital residence, she withdrew such funds from the joint accоunt and deposited them into an account opened solely in her name. Although she further claimed that the funds were used for “bills,” she did not specify what expenses were paid or document that such marital funds were in fact used for this purpose. Moreover, defendant introduced into evidence documentation showing that, at the time this action was commenced, the balance of the personal account opened by plaintiff was $70,262. Having failed to offer any proof that the $70,262 had been utilized for marital expenses, Supreme Court properly charged such amount against plaintiff‘s distributive award.
We do, however, agree that Supreme Court‘s determination concerning dependency exemptions for income tax purposes must be modified. In permitting defendant, the noncustodial parent, to dеclare the tax exemptions, Supreme Court reasoned that defendant is the sole source of income for the children and that allowing him to take the full benefit of the tax exemptions would “maximize the total available income to implement [the court‘s] deсision.” Although we do not quarrel with Supreme Court‘s reasoning, and recognize that “[w]here a noncustodial parent meets all or a substantial part of a child‘s financial needs, a court may determine that the noncustodial parent is entitled to declare the child as а dependent” (Pachomski v Pachomski, 32 AD3d 1005, 1007 [2006]; see Guarnier v Guarnier, 155 AD2d 744, 746 [1989]), here defendant will be unable to take advantage of the benefits of the tax exemptions because his income exceeds the threshold set forth in
Turning to defendant‘s cross appeal, he first argues that
The parties were married for 14 years and, at the time of trial, defendant was 50 years old and earning over $1.1 million per year as a partner in a lucrative orthopedic practice. Plaintiff was 52 years old at the time of trial and, while gainfully employed prior to the marriage, sacrificed a career in retail management in order to undertake the role of a full-time wife and mother. Her prolonged absence from the retail market and laсk of a college degree make it highly unlikely that she will ever be able to achieve reasonable parity with the marital standard of living through her own employment. Further, the parties’ lifestyle prior to their divorce was lavish, in that, among other things, they resided in a 5,000-square-foot hоme, owned a vacation home on Lake George valued at nearly $1.5 million, possessed expensive automobiles, enjoyed country club memberships and traveled extensively. Moreover, plaintiff will now be responsible for her own health insurance, property taxes, homeowner‘s insurance, and automobile expenses. In light of these facts, the monthly maintenance award of $10,000 was a reasonable exercise of Supreme Court‘s discretion (see Bean v Bean, 53 AD3d at 723; Hendricks v Hendricks, 13 AD3d 928, 929 [2004]).
However, inasmuch as “this Court‘s authority is as broad as Supreme Court‘s in resolving questions of maintenance” (Redgrave v Redgrave, 13 AD3d at 1019, quoting Smith v Smith, 249 AD2d 813, 814 [1998]), we find that the duration of the maintenance award should be reduced to eight years. This “will better serve the primary goal of maintenance, which is to encourage rehabilitation and self-sufficiency to the extent possible, while still accounting for a large discrepancy in earning power between the parties” (Bean v Bean, 53 AD3d at 724, quoting Semans v Semans, 199 AD2d 790, 792 [1993], lv denied 83 NY2d 758 [1994]). Additionally, mindful that the primary purpose of maintenance is to encourage self-sufficiency by the recipient (see Schwalb v Schwalb, 50 AD3d 1206, 1210 [2008]; Semans v Semans, 199 AD2d at 792), we find that the 4% annual increase in the amount of maintenance was inaрpropriate.
Defendant‘s challenges to Supreme Court‘s distribution of the parties’ marital assets are similarly unavailing. However, the distribution of one particular asset requires further discussion. In distributing the marital property, thе court properly awarded defendant the parties’ joint First Niagara Bank account, the value of which was stipulated to be $44,849.07 as of the commencement of the divorce action. However, while Supreme Court ordered that this account shall have a vаlue of not less than this amount upon transfer to defendant, it is not disputed that plaintiff used all such funds during the pendency of this action and that the account was fully depleted upon being transferred to defendant.2 Because Supreme Court‘s clear intent was to equally distribute the mаrital assets, defendant is entitled to the value of the joint First Niagara Bank account as set forth in the court‘s order and directed by the judgment of divorce.
We also agree with defendant that Supreme Court abused its discretion in awarding plaintiff counsel and expert fees in excess
Finally, the $2 million life insurаnce policy that defendant is required to maintain to secure plaintiff‘s distributive award and his maintenance and child support obligations should be a declining term policy (see Bean v Bean, 53 AD3d at 725; Matter of Anonymous v Anonymous, 31 AD3d 955, 957 [2006]; Somerville v Somerville, 26 AD3d 647, 650 [2006], lv dismissed and denied 7 NY3d 859 [2006]).
Cardona, P.J., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the appeal and cross аppeal from the order entered February 6, 2008 are dismissed, without costs. Ordered that the judgment entered June 20, 2008 is modified, on the law and the facts, without costs, by (1) reducing the duration of plaintiff‘s maintenance award to eight years, (2) striking the provision allowing for a 4% annual increase in maintenance, (3) directing that the life insurance policy to be maintained by defendant be a declining term policy, (4) directing plaintiff to pay defendant $44,849.07, representing the value of the joint First Niagara Bank account as set forth in the February 6, 2008 order, and (5) granting plaintiff the present right to claim the parties’ children as exemptions for federal and state income tax purposes, and, as so modified, affirmed. Ordered that the order entered July 17, 2008 is modified, on the facts, without costs, by reversing so much thereof as awarded plaintiff expert fees in the amount of $32,500 and counsel fees in the amount of $25,000, and, as so modified, affirmed.
PETERS, J.