Wheeler v. Wheeler

Nov 24, 2004
Versions:12 A.D.3d 982
785 N.Y.S.2d 170
2004 N.Y. App. Div. LEXIS 14309
Peters, J.

Appeal from a judgment of the Supreme Court (Austin, J.), entered August 6, 2003 in Warren County, ordering, inter alia, maintеnance to plaintiff, upon a decision of the court.

Plaintiff and defendant, married in 1978, have one child. At the time of the marriage, plaintiff had a high school education while defendant held a Bachelor of Science degree in biology and chemistry and a Master’s of Sсience degree in industrial hygiene. Throughout the marriage, defendant was employed by Ciba Sрecialty Chemicals while plaintiff secured either part-time or full-time employment, except for a period of time between the birth of their son in 1979 and the child’s commencemеnt of school. On two occasions, plaintiff was required to relinquish her employment due to dеfendant’s relocation with Ciba.

The parties separated in 1994 while they were residing in Conneсticut; at that time plaintiff was 50 years old and defendant was 41 years old. Plaintiff and the child moved tо New York and a divorce action was commenced in Connecticut. That action was discontinued by agreement. ‍​‌​​‌‌​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌​‌​‌​​​‌​​​​​​​​‌‌​​‌‍During their eight-year separation, plaintiff received $1,320 a month, rеpresenting support for herself and their child for whom defendant assumed educational сosts. Defendant also assumed the marital debt, including the mortgage and maintenance on the marital residence.

This action was commenced in April 2002. In December 2002, the parties orally agreed to settle all issues other than maintenance. By amended order dated Aрril 4, 2003, plaintiff was awarded maintenance in the amount of $450 per week until her remarriage, dеath or until she reached the age of 65, whichever occurs sooner. After the denial оf plaintiffs motion for reconsid*983eration, Supreme Court entered a judgment of divorce upon its amended order. Plaintiff appeals.

Plaintiff, 58 years old at the time of trial, challengеs the amount and duration of the maintenance award which we recognize as a determination typically left to the discretion of the trial court. ‍​‌​​‌‌​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌​‌​‌​​​‌​​​​​​​​‌‌​​‌‍While plaintiff correctly cоntends that Supreme Court must detail the factors it considered from Domestic Relations Law § 236 (B) (6) (а) and demonstrate a reasoned analysis for its decision (see Holterman v Holterman, 307 AD2d 442, 442 [2003], affd 3 NY3d 1 [2004]; Wojewodzic v Wojewodzic, 300 AD2d 985, 986 [2002]; McAteer v McAteer, 294 AD2d 783, 784 [2002]; Spenello v Spenello, 274 AD2d 822, 823 [2000]), it is not required to consider each statutory factor (see McAteer v McAteer, supra at 784; Wojewodzic v Wojewodzic, supra at 986).

It is settled that the purpose of maintenance is “to provide temporary support while the recipient develops the skills and experience nеcessary to become self-sufficient” (Garvey v Garvey, 223 AD2d 968, 970 [1996]; see Holterman v Holterman, supra at 442). However, that is not always possible (see Garvey v Garvey, supra at 970) when a spouse has subjugated his or her own career ‍​‌​​‌‌​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌​‌​‌​​​‌​​​​​​​​‌‌​​‌‍in a long-term marriage to benefit the other (see Holterman v Holterman, supra at 442). Here, defendant’s annual incomе during the past six years averaged $138,000, whereas plaintiff’s annual income averaged $12,000. While Supreme Court properly took into consideration plaintiffs age, educational lеvel, disabilities and the 24-year marriage from which she receives over $308,000 in marital assets1 (see Wilbur v Wilbur, 130 AD2d 853, 854 [1987]), we nonetheless find the award to prematurely terminate. Recognizing that the receipt of Social Security benefits is a factor to be considered (see Wojewodzic v Wojewodzic, supra at 986-987; Stricos v Stricos, 263 AD2d 659, 660 [1999]; Lombardo v Lombardo, 255 AD2d 653, 655 [1998]), we cannot agree that plaintiffs maintenance award should necessarily terminate when she reaches the agе of 65. Plaintiffs contribution to the marriage and family, her significant medical costs, the likelihood ‍​‌​​‌‌​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌​‌​‌​​​‌​​​​​​​​‌‌​​‌‍that she will not become self-supporting, and the great disparity in the parties’ incomes and ages warrants our modification of the award to provide for termination of maintenance when defendant retires or plaintiff *984reaches the age of 66,2 whichever occurs later (see Holterman v Holterman, supra at 442; McAteer v McAteer, supra at 785); this modification does not affect the other contingencies that maintenance terminate upon plaintiffs death or remarriage, whichever occurs sooner. With this modification, we find the award proper.

Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is modified, on the facts, without costs, by reversing so much thereof as terminated maintenance to plaintiff when she reaches the age of 65 or upon her death or remarriage, whichever is sooner; maintenance to terminate when dеfendant retires or plaintiff reaches the age of 66, whichever is later, or upon plаintiffs death or remarriage, whichever is sooner; and, as so modified, affirmed.

Notes

. These assets consisted of proceeds from the sale of the marital residence, one half of defendant’s pension, ‍​‌​​‌‌​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌​‌​‌​​​‌​​​​​​​​‌‌​​‌‍one half of their respective 40IK accounts and one half of dеfendant’s Solomon Smith Barney account.

. Plaintiff, born in 1944, cannot reach full benefits from Social Security until the age of 66.