Repetti v. RepettiRepetti v. Repetti
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff maintenance in the sum of $1,350 per week until and through September 30, 2022, and substituting therefor a provision awarding the plaintiff maintenance in the sum of $1,350 per week until the first of her remarriage, her attainment of the age of 67 or such age that she would qualify for full Social Security benefits, or her death, (2) by adding a provision thereto directing the defendant to maintain a dental insurance policy for the parties’ unemancipated child, (3) by deleting the provision thereof awarding the plaintiff the sum оf $70,171 for her marital share of Congoo, LLC, (4) by deleting the provision thereof awarding the plaintiff the sum of $5,000 for her marital share of Mass Transmit, LLC, and (5) by deleting the provision thereof award
The plaintiff and the defendant were marriеd in 1984, and have four children together. During the marriage, the defendant was a partner at an accounting firm, while the plaintiff was the primary caregiver for the children and a homemaker. In May 2007, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff was awarded custody of the parties’ youngest and only unemancipated child.
A nonjury trial was conducted to resolve, inter alia, issues of maintenance, child support, and equitable distribution of certain assets. Following the trial, the Supreme Court entered a judgment of divorce which, inter alia, (1) awarded the plaintiff maintenance in the sum of $1,350 per week upon the sale of the marital rеsidence until and through September 30, 2022, (2) did not direct the defendant to provide for the payment of college expenses and to maintain a dental insurance policy for the parties’ unemancipated child, (3) awarded the plaintiff the sum of $480,000 for her martial share of the defendant’s interest in his accounting firm, (4) awarded the plaintiff the sum of $70,171 for her marital share of the defendant’s interest in Congoo, LLC, (5) awarded the plaintiff $5,000 for her marital share of the defendant’s interest in Mass Transmit, LLC, (6) directed that if title to the marital residence did not pass to a bona fide purchaser on or before June 30, 2015, then beginning on July 1, 2015, until the sale is completed, the parties would equally share the cost of the mortgage, real estate taxes, and real estate insurance on the marital residence, and the plaintiff would pay all other expenses related to the marital residence, and (7) awarded the plaintiff counsel fees in the sum of $72,500. The plaintiff appeals and the defendant cross-appeals from stated portions of the judgment.
“ ‘[T]he 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 own unique facts’ (Giokas v Giokas, 73 AD3d 688, 688 [2010], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]; see Alleva v Alleva, 112 AD3d 567, 568 [2013]). “The factors to be considered in awarding maintenance include ‘the standard of living of the parties during the marriage, the income and property оf the parties, the distribution of marital property, the duration of the marriage,
the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’ (DiPalma v DiPalma, 112 AD3d 663, 664 [2013], quoting Kret v Kret, 222 AD2d 412, 412 [1995]).
Here, the plaintiff’s contention that the Supreme Court should have awarded her nondurationаl maintenance is without merit. However, in light of the parties’ ages, the marital standard of living, as well as their present and future earning capacities, the court should have awarded the plaintiff maintenance in the amount of $1,350 per week from the time that title for the marital residence passes to a bona fide purchaser until the plaintiff reaches the age of 67 or such age that she would qualify for full Social Security benefits, or until her remarriage or death (see Carroll v Carroll, 125 AD3d 710, 712 [2015]; Giokas v Giokas, 73 AD3d at 689; Baron v Baron, 71 AD3d 807, 810 [2010]).
When determining a parent’s child support obligation, the court “ ‘may impute income based upon the party’s past income or demonstrated future potential earnings’ (Matter of Abruzzo v Jackson, 137 AD3d 1017, 1018 [2016], quoting Matter of Rohme v Burns, 92 AD3d 946, 947 [2012]). “The court may take into account what the parent is capable of earning by honest efforts, given his [or her] education and opportunities” (Matter of Abruzzo v Jackson, 137 AD3d at 1018 [internal quotation marks omitted]). Here, the record supports the Supreme Court’s determination to impute income to the plaintiff in the sum of $30,000 per year. Additionally, contrary to the plaintiff’s contention, the court did not err in declining to direct the defendant to contribute his pro rata share of the parties’ unemancipаted child’s future college expenses. “The court may direct a parent to contribute to a child’s college education pursuant to
“A 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 that discretion, its determination should not bе disturbed” (Aloi v Simoni, 82 AD3d 683, 685 [2011] [internal quotation marks omitted]). “When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible; however, equitable distribution does not necessarily mеan equal distribution” (Davis v O’Brien, 79 AD3d 695, 696 [2010]). “Equitable distribution is ‘based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker’ ” (K. v B., 13 AD3d 12, 17 [2004], quoting O’Brien v O’Brien, 66 NY2d 576, 585 [1985]). “The distributiоn of marital assets depends not only on the financial contribution of the parties ‘but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotiоnal and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home’ ” (K. v B., 13 AD3d at 17, quoting Brennan v Brennan, 103 AD2d 48, 52 [1984]).
Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in awarding the plaintiff the sum of $480,000, representing a 30% share of the stipulated value of the defendant’s interest in his accounting firm and related companies. The award of a 30% share of the stipulated value of the defendant’s interest properly accounts for the plaintiff’s minimal direct and indirect contributions to the businesses, while not ignoring her contributions as the primary caretaker of the parties’ children, which allowed the defendant to focus on the businessеs (see Elias v Elias, 101 AD3d 938, 939 [2012]; Wasserman v Wasserman, 66 AD3d 880, 882 [2009]; Quinn v Quinn, 61 AD3d 1067, 1069 [2009]; Kaplan v Kaplan, 51 AD3d 635, 637 [2008]).
The Supreme Court erred in awarding the plaintiff a portion of the defendant’s interests in Congoo, LLC, and Mass Transmit, LLC. The plaintiff, as the party seeking an interest in those businesses, did not submit sufficient evidence as to the
Based upon the size of the former marital residence, the costs associated with running the former marital residence, including the mortgage, real estate taxes, real estate insurance, and utilities, and the fact that the parties’ unemancipated child was scheduled to graduate from high school in May or June 2015, the Supreme Court providently exerсised its discretion in directing that beginning on July 1, 2015, if the former marital residence had not yet been sold, the parties would be equally responsible for the mortgage, real estate taxes, and real estate insurance, and the plaintiff would be solely responsible for all other expenses related to the property (see McCoy v McCoy, 117 AD3d 806, 809 [2014]; Goldblum v Goldblum, 301 AD2d 567, 569 [2003]).
Contrary to the plaintiff’s contention, she was not entitled to equitable distribution of an individual retirement account because there was insufficient evidence about that account, including whether it had a value at the time of the commencement of the action (see Osman v Osman, 142 AD3d 978, 980 [2016]; Sutaria v Sutaria, 123 AD3d 909, 911 [2014]).
Under the circumstances of this case, we reduce the award of counsel fees to the plaintiff from the sum of $72,500 to the sum of $45,000.
The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.
Chambers, J.P., Hall, Miller and Connolly, JJ., concur.