Maren E. Vantine, Appellant-Respondent, v David C. Vantine, Respondent-Appellant.
Appellate Division of the Supreme Court of New York, Third Department
121 AD3d 1259 | 4 NYS3d 375
Lahtinen, J. Cross appeals from a judgment of the Supreme Court (McDermott, J.), entered November 5, 2013 in Madison County, ordering, among other things, equitable distribution of the parties’ marital property, upon a decision of
Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in June 2003, had one child together (born in 2004), and the wife commenced this divorce action in December 2010. In May 2011, the husband was directed to pay temporary maintenance of $5,769.23 biweekly and child support of $850 biweekly. Prior to trial, the parties agreed to joint legal custody of the child, primary residence with the wife and liberal parenting time for the husband. A trial ensued as to equitable distribution, maintenance and child support. Considerable conflicting proof was presented as to the values of two businesses, the husband‘s 95% interest in the separate property Vantine Imaging, LLC and his 100% interest in the marital property Greek Composites, LLC. Supreme Court awarded the wife $82,525 for Vantine Imaging, representing 2.5% of the increase in value of the husband‘s share of the company during the marriage, and $150,000 for Greek Composites, representing 30% of that company‘s value as of the commencement of the action. The husband was directed to pay $2,700 per month in child support, 100% of health insurance premiums and related medical costs for the child, and 100% of the child‘s college tuition and associated expenses. The wife was awarded $6,700 a month in maintenance for a period of three years. Her application for counsel fees and the cost of expert services was denied. The wife appeals and the husband cross-appeals.
The equitable distribution award was within Supreme Court‘s discretion. The wife contends that she should have received a larger percentage of the increase in value during the marriage of the husband‘s 95% interest in Vantine Imaging. That company was formed in 2000, prior to the marriage, and it essentially continued a photography business that had been in the husband‘s family for several generations. It was undisputedly separate property (see
Supreme Court credited the husband‘s expert and found that the value of his interest in Vantine Imaging had appreciated by $3,301,000 during the marriage. However, the court
With respect to the parties’ remaining marital property, “[i]t is well established that equitable distribution of marital property does not necessarily mean equal, and Supreme Court has substantial discretion in fashioning an award of equitable distribution” (Lurie v Lurie, 94 AD3d 1376, 1378 [2012]; see Quinn v Quinn, 61 AD3d 1067, 1069 [2009]). Supreme Court set forth adequate reasons for its distribution of the property and we are unpersuaded that it abused its discretion.
The wife argues that the award of maintenance was insufficient. “[T]he purpose of maintenance is to provide temporary support while the recipient develops the skills and experience necessary to become self-sufficient” (Armstrong v Armstrong, 72 AD3d 1409, 1415 [2010] [internal quotation marks and citations omitted]). “The amount and duration of a spousal maintenance award is within the sound discretion of Supreme Court, after consideration of the enumerated statutory factors, as well as the marital standard of living” (Roberto v Roberto, 90 AD3d 1373, 1376 [2011] [citations omitted]). Supreme Court detailed the reasons for its award. Among other things, the court discussed the fact that the wife was 44 years old, in good health, had a Bachelor‘s degree in German and had worked as a flight attendant. With two semesters of college, she could obtain a teaching certificate, which she indicated an interest in pursuing. Various potential employment opportunities for the wife were apparently available within commuting range. The court characterized the parties’ lifestyle during the short marriage as comfortable and determined that they had lived well within their means. The wife‘s contention that she could not return to work because she needed to be available for the child was found unconvincing. The fact that she had an infant at home from a relationship with another man after the parties separated in 2008 was noted. The impact of, among other
We agree with the wife and attorney for the child that the amount of child support should be increased. The husband‘s adjusted gross income in 2011 was $902,2771 and the parties do not dispute Supreme Court‘s calculation that his pro rata share of basic child support was 91.8%, resulting in an obligation of $21,224 ($1,769 per month) based on the initial $136,000 of combined parental income for one child (17%) (see
The wife should have been awarded at least part of her counsel fees and expert witness fees. For matrimonial actions such as this one commenced on or after October 12, 2010, there is now a statutory “rebuttable presumption that counsel fees shall be awarded to the less monied spouse” (
Turning to the husband‘s cross appeal, he argues that he was entitled to a credit on the equitable distribution for payment of excess temporary maintenance. Although such a credit may be granted, it is not mandatory, and we find no abuse of discretion (see Fox v Fox, 306 AD2d 583, 583-584 [2003], appeal dismissed 1 NY3d 622 [2004]; see also Johnson v Chapin, 12 NY3d 461, 466 [2009]). The remaining arguments, to the extent preserved, have been considered and are unavailing.
Peters, P.J., McCarthy and Lynch, JJ., concur. Ordered that the judgment is modified, on the law and the facts, without costs, by increasing defendant‘s child support obligation to $5,000 per month; matter remitted to the Supreme Court for a hearing to determine an appropriate award to plaintiff of counsel fees and expert witness fees; and, as so modified, affirmed.