Peter Settle, Respondent, v Virginia McCoy, Appellant.
Supreme Court, Appellate Division, Third Department, New York
June 20, 2013
107 A.D.3d 1106 | 968 N.Y.S.2d 697
The parties were married in 1982 and have two children, a daughter (born in 1988) and a son (born in 1992). Plaintiff (hereinafter the husband) commenced the instant divorce action in November 2003 and defendant (hereinafter the wife) counterclaimed for a divorce and related relief. The parties agreed to a bifurcated trial, after which a lengthy custody trial ensued and the husband was ultimately granted sole custody of the children pursuant to an August 2006 order. In lieu of a trial on the remaining issues, the parties then agreed that they would submit exhibits, affidavits and memoranda of law. Supreme Court thereafter issued an August 2007 order (later supplemented by a July 2011 order) which, among other things, resolved the issues of equitable distribution, maintenance and child support. Upon cross appeals from that order, this Court held that, inasmuch as Supreme Court had yet to issue a judgment of divorce, the purported division of marital property was ineffective (63 AD3d 1215 [2009]). Accordingly, the order was reversed and the matter was remitted to Supreme Court. Supreme Court thereafter granted a judgment of divorce in favor of the wife that incorporated, as relevant here, its August 2007 and July 2011 orders addressing the financial issues. The wife now appeals.
The wife contends that Supreme Court‘s award of maintenance—in the amount of $1,600 per month until she reaches the age of 62 or begins to collect her portion of the husband‘s pension—is inadequate in both amount and duration and requests an award of $3,900 per month retroactive to November 1, 2005 and continuing until she begins to collect her share of the husband‘s pension. While the amount and duration of maintenance are generally left to the sound discretion of the trial court in accordance with its consideration of the statutory factors, as well as the parties’ predivorce standard of living (see
Here, Supreme Court properly took into account the wife‘s absence from the workforce for an extended period of time to
However, we do find merit to the wife‘s claim that Supreme Court should not have directed that maintenance terminate upon the earlier of when she reaches 62 years of age or when she begins to collect her portion of the husband‘s pension, as this would potentially leave a gap in her receipt of financial support in the event that the husband elects to defer his retirement beyond the age of 65.2 Even assuming that Supreme Court anticipated that the wife would become self-supporting to some extent by the time she reached the age of 62, in light of the significant disparity in the parties’ incomes and the court‘s express finding that it was doubtful that she would ever command a salary that would afford her the standard of living she had enjoyed during the marriage, we find it appropriate to modify the court‘s order to extend the award of maintenance until the wife begins to collect Social Security retirement benefits or her portion of the husband‘s pension, whichever occurs first (see Ndulo v Ndulo, 66 AD3d 1263, 1265-1266 [2009]).
Furthermore, the award of maintenance should have been made retroactive to November 2005, “taking into account any amount of temporary maintenance which has been paid” during the relevant time period since that date (
We turn next to Supreme Court‘s child support award. We reject the wife‘s contention that Supreme Court‘s calculation of her child support obligation of $51 per week was excessive. The court was permitted, in its discretion, to impute income to the wife (see
We are likewise unpersuaded by the assertion that Supreme Court erred in failing to direct the husband to pay what the wife characterizes as child support arrears. Pursuant to a voluntary arrangement between the parties in December 2005, the husband agreed to pay the wife $1,860 per month—which the parties “agreed not to characterize . . . as being spousal support or child support“—“without prejudice to either party seeking credits for payments made during the pendency of [the] action.” While the record demonstrates that the husband did not make such payments to the wife from March 2006 to August 2006, we cannot say that Supreme Court abused its discretion in relieving him from that obligation in light of its finding that
Finally, because Supreme Court carefully considered the circumstances of the case and of the respective parties—including the generous equitable distribution award to the wife—we cannot say that it abused its discretion in denying her request for counsel fees, despite the disparity between the parties’ incomes (see Keil v Keil, 85 AD3d 1233, 1238 [2011]; Matter of Yarinsky v Yarinsky, 59 AD3d 828, 831 [2009], lv denied 12 NY3d 712 [2009]; Soles v Soles, 41 AD3d 904, 908 [2007]). We have considered the parties’ remaining contentions and, to the extent they are properly before us, find them to be without merit.6
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the law and the facts, without costs, by reversing so much thereof as (1) directed plaintiff to pay maintenance to defendant until she reaches 62 years of age or begins to collect a portion of plaintiff‘s pension, whichever comes first, (2) denied defendant‘s request for retroactive maintenance and (3) directed defendant to pay a pro rata share of the daughter‘s college expenses incurred past the age of 21; plaintiff is directed to (1) pay maintenance to defendant retroactive to November 2005 and until defendant begins to collect Social Security retirement benefits or her portion of plaintiff‘s pension, whichever occurs first, and (2) maintain a policy of life insurance, with defendant as beneficiary, in an amount necessary to satisfy his maintenance obligation until such obligation terminates, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.