April 29, 2020 Decisions

Supreme Court properly awarded plaintiff 95% of equity in the marital residence where defendant was under house arrest or imprisoned from time of purchase until commencement of divorce
Jones v. Jones, 2017-08387
The parties in this case were married in 1990 and have one emancipated child. While the marital residence purchase was pending, the defendant was arrested and, one month after the closing, he was placed on “house arrest.” At the time of the transfer of title, the deed was in the name of the plaintiff and defendant’s father, who is now deceased, as joint tenants with rights of survivorship. The plaintiff paid the mortgage since the time of purchase of the marital residence. The defendant was unemployed during his period of house arrest from August 1998 through January 2000, and was imprisoned from January 2000 through March 2013. The plaintiff commenced this action for divorce and ancillary relief in October 2010. The Supreme Court, following a nonjury trial on the issue of equitable distribution of the marital residence, issued a decision, and subsequently a judgement, awarding the plaintiff 95% of the equity in the marital residence and the defendant 5%. The court did not award the defendant a distributive share of the plaintiff’s pension. The defendant appealed from the judgment.

“Equitable distribution law does not mandate an equal division of marital property”(Culen v Culen, 157 AD3d 926, 929; see Scaramucci v Scaramucci, 140 AD3d 848, 849) “The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors.” (Culen v. Culen, 157 AD3d at 929; see Domestic Relations Law § 236[B][5][d]). The Second Department, in considering the factors and circumstances of this case, found that the Supreme Court providently exercised its discretion in equitably distributing the marital assets. (Culen v. Culen, 157 AD3d at 929). Further, contrary to the defendant’s argument, the court was not required to provide mathematical calculations to explain how it reached its determination as to each party’s equitable share in the marital residence (see Rodgers v. Rodgers, 98 AD2d 386, 391).

The Second Department found that the Supreme Court properly declined to distribute a portion of the plaintiff’s pension to the defendant. The defendant failed to request that the court award him a portion of the plaintiff’s pension and the parties agreed that the only issue to be determined at trial was the equitable distribution of the marital residence. (see Halley-Boyce v. Boyce, 108 AD3d 503, 505; Leichtner v. Leichtner, 18 AD3d 446).

Supreme Court properly awarded defendant one-third of marital business and maintenance in long term marriage
Kamm v. Kamm, 2017-02226
The parties were married for 27 years and have two now-emancipated children together. During their marriage, the plaintiff sold the parties’ assets to begin a jewelry business, which was their primary source of income. The defendant worked as a credit investigator at the time of their marriage and left her employment to serve as a homemaker and caregiver to the parties’ children. In 1999, the parties separated and agreed that the plaintiff would financially support the defendant and their children, and that the defendant would live with and take care of the children. This arrangement lasted for approximately ten years. In September 2011, the plaintiff commenced this action for divorce and ancillary relief. As relevant to this appeal, by judgment of divorce, the Supreme Court awarded the defendant the sum of $170,000, as one-third interest in the parties’ jewelry business, and directed the plaintiff to pay the defendant $3,500 per month in maintenance through June 2019, and thereafter, $3,000 per month through June 2022. The plaintiff appealed.

Contrary to the plaintiff’s contentions, an award of one-third of the value of the business constitutes an appropriate equitable distribution of that property. The defendant’s engagement ring and the parties’ joint property (their townhouse) were used to purchase the business. The business benefitted from the defendant’s contribution as a stay-at-home parent, and this entitled her to an equitable share in the business (see Goodman v. Lempa, 168 AD3d 914, 914-915; Eschemuller v. Eschemuller, 167 AD3d at 985). The Second Department also agrees with the lower court’s determination regarding maintenance since it determined that the plaintiff had an annual income considerably greater than that reflected in his tax returns and statements of net worth. “A court is not bound by a party’s account of his or her own finances, and where a party’s account is not believable, the court is justified in finding a true or potential income higher than that claimed.” (Scammacca v. Scammacca, 15 AD3d 382, 382, quoting Rohrs v. Rohrs, 297 AD2d 317, 318).

Further, the court properly considered the factors in Domestic Relations Law former §236(B)(6)(a), including the 27-year marriage, the distributive award of one-third of the value of the business, the defendant’s poor prospects for future employment and prolonged absence from the workforce, and her modest standard of living in its determination of the maintenance (see Culen v. Culen, 157 AD3d at 928-929; Sutaria v. Sutaria, 123 AD3d 909, 911).

Maintenance award should continue until defendant reaches Social Security age, Defendant’s interest in Plaintiff’s business increased on appeal from 20% to 35%
Klestadt v. Klestadt, 2017-06684
The parties married in 1988, and have two now-emancipated children. The plaintiff commenced this action for divorce and ancillary relief in August 2014. The parties later stipulated that the defendant should be awarded a divorce. A judgment of divorce was entered, following a trial with respect to, among other things, the equitable distribution of certain assets. The defendant appealed, and the plaintiff cross-appealed, from stated portions of the judgment.

Contrary to the defendant’s contention, the lower court properly awarded her durational, rather than lifetime maintenance (see Gorman v. Gorman, 165 AD3d 1067, 1070). However, the maintenance award should continue until the earliest of the defendant’s remarriage, or her attainment of the age at which she is eligible for full Social Security benefits, or the death of either party, rather than providing for a durational limitation of seven years and directing that the maintenance obligation would cease upon the defendant’s remarriage or the death of either party (see Gorman v. Gorman, 165 AD3d at 1070; Nadasi v. Nadel-Nadasi, 153 AD3d 1346, 1351; Repetti v. Repetti, 147 AD3d 1094, 1097).

Based on defendant’s direct contributions to the plaintiff’s business, and her indirect contributions as a homemaker and primary caregiver for the children of their long-term marriage, the Second Department found that the 20% award of the fair market value of the plaintiff’s interest in his law firm was an improvident exercise of discretion, and modified the judgment by increasing the amount to 35% (see Katz v. Katz, 153 AD3d 912, 914; Repetti v. Repetti, 147 AD3d at 1098).
The Supreme Court did not improvidently exercise its discretion in awarding the defendant only $75,000 in counsel fees, as the plaintiff had paid $110,000 to the defendant’s counsel pendente lite, and the defendant’s unwarranted economic demands precluded settlement and protracted the trial.

Family Court properly denied petitioner’s request for counsel fees in family offense proceeding
Matter of Christy v. Christy, 2019-02891
In a family offense proceeding, the Family Court, following a hearing, issued an order of protection against the respondent and in favor of the petitioner. Subsequently, the petitioner moved pursuant to Family Court Act § 842(f) for an award of counsel fees. The court noted that “the matter was repeatedly adjourned by counsel [for both parties] for a myriad of reasons” and that each party “contributed to the escalating legal costs,” and denied the motion. The petitioner appealed. Pursuant to Family Court Act §842(f), the court may direct a party to “pay the reasonable counsel fees and disbursements involved in obtaining [an order of protection] of the person who is protected by such order.” Here, the Second Department, upon considering all circumstances of the case, including the parties’ conduct, agrees with the Family Court’s determination denying the petitioner’s motion pursuant to Family Court Act § 842(f) for an award of counsel fees (see Matter of Barcia v. Barcia, 90 AD3d at 921).

Family Court properly awarded father sole custody and permitted him to relocate to Kansas where mother had a lengthy struggle with alcohol abuse
Matter of Williamson v. Williamson, 2019-04943
Appeal from an Order of the Family Court which, after a hearing, dismissed the mother’s petition for sole legal and physical custody of the parties’ two children, awarded sole legal and physical custody to the father, and permitted him to relocate with the children to Kansas, and awarded the mother parental access in Kansas. The court issued a second order, dismissing the mother’s petition for sole legal and physical custody of the children. The mother appealed.
The Order is affirmed. The Family Court was able to observe the demeanor and assess the credibility of the parties while determining the best interests of the children under the totality of the circumstances. While the attorney for the children advocated awarding custody to the mother, “the children were too young to express their desires” and the attorney relied on certain information that the court did not credit (see Ambrose v. Ambrose, 176 AD3d at 580).

The forensic evaluator provided alternative proposals and noted that the court would need to determine where the children would most likely have security and stability. The forensic evaluator opined that the mother’s geographical stability, in comparison to the father’s likelihood of relocating several times during his military career, would benefit the children, but that was expressly conditioned upon the mother’s alcohol abuse being controlled. “It was within the court’s discretion in evaluating the children’s best interest, to weigh the mother’s lengthy struggle with alcohol abuse, including relapse more than once despite treatment programs, against the mother’s relatively short 11 month period of sobriety.” (see generally Matter of Iams v. Estate of Iams, 106 AD3d 910, 911-912). The lower court here adequately explained its reasoning for awarding sole legal and physical custody to the father, and its rationale is greatly supported in the record (see Ambrose v. Ambrose, 176 AD3d at 1150-1151).

The Second Department rejects the contention of the mother and the attorney for the children that the Family Court’s determination to permit the father to relocate with the children to Kansas is not supported by the record. Since this matter concerns an initial custody determination, “the strict application of the factors relevant to a relocation petition is not required” (Matter of Miller v Hinckley, 176 AD3d 944, 945 [citation omitted]). The father had a strong support system in Kansas, since the parties had previously lived there and the father had extended family living there. On the other hand, the mother had no family or friends in the area where she resided. “Since the father’s relocation is ‘but one factor among many’ in determining the best interests of the children, the court’s determination to permit the father to relocate with the children to Kansas was in the best interests of the children and will not be disturbed (id. at 945).”