OPINION OF THE COURT
In this mаtrimonial action, plaintiff wife, Marion Rodgers, appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County, which, among other things, granted her a divorce on the ground of abandonment, awarded her maintenance, and directed distribution of the marital property in a certain manner. She complains that the judgment failed to sufficiently reimburse her for the funds expended on necessities, that the maintenance award is inadequate, that equitable distribution of defendant’s interest in an automobile repair business, jointly held real estate, and non-vested pension was improperly denied, and that she should not have been required to pay her own counsel and expert fees. We modify the judgment in part and remit for further proceedings.
The parties were marriеd in February, 1976. Plaintiff was 47 years old at the time and was employed by Grumman Aerospace Corporation in the accounts payable department, earning $260 per week. She retired in July, 1978, ostensibly due to health problems, and began to
Marital difficulties apparently began in May, 1980, when the defendant lеft the plaintiff and moved closer to his place of employment in Suffolk County. This action, seeking dissolution of the marriage, equitable distribution, maintenance, and a monetary judgment for necessities, was commenced in January, 1981. Temporary maintenance was аwarded in April, 1981 and a payroll deduction order was issued against defendant’s salary upon his failure to satisfy that obligation. There were arrears of $1,825 remaining at the time of trial.
According to the testimony at trial, defendant earned a gross biweekly income of $938.69 as а police officer and owned an interest in an automobile repair business which he had established in November, 1981. Plaintiff had a monthly income of approximately $651, comprised of the $319 in pension benefits, $200 in part-time earnings, and $132 in interest income.
In a memorandum оpinion which gave consideration to each of the statutory factors (see Domestic Relations Law, § 236, part B, subd 5), Special Term made an award of $26 per week for maintenance effective from the date of the commencement of the аction and granted defendant a credit for any temporary maintenance paid from that date to the date of the payment of the maintenance award. Plaintiff was also awarded a monetary judgment totaling $5,850, comprised of $4,025 for necessities and $1,825 fоr arrears under the temporary maintenance order, subject to a $49 per week credit, measured from the date of the commencement of the action, representing- the difference between the maintenance finally awarded and the temрorary maintenance. She was denied equitable distribution
Resolution of the issue of plaintiff’s right to reimbursеment of expenditures for necessities turned primarily on the credibility of the witnesses. It was plaintiff’s burden to establish her right to recover for each of the items sought and we perceive no basis to overturn Special Term’s findings (see Malman v Malman,
On the issue of maintenance, howеver, we find that a substantial modification is in order. Based upon an examination of relative needs, resources, and earning capacities of the parties, we find that an award of $50 per week would be more appropriate. Plaintiff’s present incоme and future earning capacity have been restricted by her age and apparent health problems (Domestic Relations Law, § 236, part B, subd 6, par a, els [1], [2], [3]). In contrast, defendant, who is in good health, has a significantly greater earning capacity both from his full-timе employment as a police officer and from the business that he partially owns (cf. Kay v Kay,
Moreover, the provisions of the judgment making the permanent maintenance award effective nunc pro tunc to the date of the commencement of the action and affording defendant a credit against the arrears accrued under the temporary maintenance order should be deleted.
Part B of section 236 (subd 6, par a) provides that a permanent maintenance order “shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum оr
Prior to the 1980 amendments to section 236 of the Domestic Relations Law (L 1980, ch 281), it was well settled that temporary payments mаde pursuant to a subsequently nullified court order could not be recovered either directly by restitution or indirectly by recoupment (e.g., Rosenberg v Rosenberg,
We turn, then,' to the questions concerning the distribution of the marital property. To place them in proper focus, it is useful to clear up a common misconception concerning the sсope of the Equitable Distribution Law. While the concept of equitable distribution does borrow the theory of a community property regime that a marriage is an economic partnership between the spouses (see, e.g., Note, New York’s Equitable Distribution Law: A Swеeping Reform, 47 Brooklyn L Rev 67, 70-71), it is a mistake to
The basic premise of a community property system, whose “genius is not that of the common law” (Painter v Painter, supra, p 216; see, also, 2 Tiffany, Real Property [3d ed], § 438), is that eaсh spouse has a present vested undivided one-half interest in all property acquired during the existence of the marital relationship, except property received by gift, inheritance or devise (2 Tiffany, op. cit., §§ 438, 439). Neither spouse has the power to make a tеstamentary disposition of community property in excess of his or her interest (2 Tiffany, op. cit., § 442). Upon dissolution of the marriage, each spouse is entitled to an equal division of the community property (see De Funiak & Vaughn, Principles of Community Property [2d ed, 1971], § 105; Prager, Sharing Principles and the Future of Marital Property Law, 25 UCLA L Rev 1). “Equal division is certainly the fundamental objective” (Matter of Brigden, 80 Cal App 3d 380, 390).
In stark contrast, under our Equitable Distribution Law, during the marriage, and absent any divorce action, each spouse retains sole interest in the property to which he or she has titlе and, with few exceptions (see, e.g., EPTL 5-1.1, 5-3.1), can dispose of it as he or she desires (Note, op. cit., 47 Brooklyn L Rev 67, 71; cf. Imel v United States, 184 Col 1, 9). In a divorce proceeding, which triggers the right to equitable distribution, property acquired during marriage need not be distributed equally but, rather, “in a manner which reflects the individual needs and circumstances of the parties” (Memorandum of Governor Carey, 1980 McKinney’s Session Laws of NY, p 1863). Unlike a community property regime, fairness, not mathematical precision, is the guidepost. Under equitable distribution, a court possesses flexibility and elasticity to mоld an appropriate decree because what is fair and just in one circumstance may not be so in another (cf. Perri v Perri,
Plaintiff clearly is not entitled to a share of defendant’s interest in the automobile business. Inasmuch as
In Damiano v Damiano (
A lump-sum award is preferable when the amount the nonemployee spouse will receive is small and there is sufficient marital property to be awarded in lieu of a deferred interest, for enforсement problems may be avoided and finality achieved before the actual receipt of retirement benefits which may be years in the future (Comment, Domestic Relations — Husband’s “Vested” Interest in Retirement Plan is Divisible as Marital Property, 42 Mo L Rev 143, 150-151). Since these faсtors are absent here, an “‘if, as, and when’” approach would be more equitable and should be employed upon remittance (Comment, op. cit., 42 Mo L Rev 143, 150).
We remind Special Term that actuarial testimony should not be viewed as talismanic for it may fail to account for a number of possibilities, including, but not limited to, forfeiture, abandonment of pension rights prior
Finally, the record shows that plaintiff had sufficient funds from which she could pay her attorney and maintain this action. Therefore, we cannot say that Special Term abused its discretion in refusing to award plaintiff counsel and expert fees (see Ackerman v Ackerman,
For the reasons stated, the judgment appealed from should bе modified, on the law and the facts, as provided above, and the matter remitted to Special Term for further proceedings, all in accordance with this opinion.
Mangano, Gibbons and Gulotta, JJ., concur.
Judgment of the Supreme Court, Nassau County, dated September 7, 1982, modified, on the law and the facts, by inсreasing the maintenance award to $50 per week, by deleting the provision that defendant is entitled to a credit of $49 per week from January 31,1981 until the date of the judgment, against the money judgment in favor of the plaintiff and by adding a provision thereto that the plaintiff is entitled to the equitable distribution of defendant’s nonvested pension. As so modified, judgment affirmed in
Notes
. In any event, as plaintiff did not rеquest maintenance in her original divorce complaint, a permanent maintenance award could be retroactive only to the date of her first application for temporary maintenance (see Scheinkman, 1982 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, § 236, part A, C236A:10, pp 56-57, 1982-1983 Pocket Part).
. In fact, whatever discretion existed under former law (cf. Silver v Silver,