DiFiore v. DiFiore

85 A.D.3d 714, 925 N.Y.S.2d 544

This text of 85 A.D.3d 714 (DiFiore v. DiFiore) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiFiore v. DiFiore, 85 A.D.3d 714, 925 N.Y.S.2d 544 (N.Y. Ct. App. 2011).

Opinion

In an action for a divorce and ancillary relief, the plaintiff wife appeals (1) from findings of fact and conclusions of law of the Supreme Court, Queens County (Corrado, J.H.O.), dated January 5, 2010, (2) from a qualified medical child support order of the same court dated January 5, 2010, and (3), as limited by her brief, from so much of a judgment of the same court dated January 5, 2010, as, upon a decision of the same court dated July 7, 2009, made after a nonjury trial, and upon the findings of fact and conclusions of law, failed to distribute to her the sum of $206,555.75 from the proceeds of the sale of two properties owned by the defendant husband’s business, J&D Builders LLC, failed to distribute to her the sum of $29,713 representing marital funds allegedly wastefully dissipated by the husband, failed to rule upon and grant her application for an award of prospective maintenance in the amount of $6,000 per month for eight years, failed to rule upon and grant her application for an award of $3,000 per month in child support and to direct the husband to pay 100% of the parties’ children’s unreimbursed medical and dental expenses and all of their private school tuition and expenses, failed to equitably distribute to her an award of $22,260.63, representing funds allegedly withdrawn by the husband from the parties’ apartment building partnership account, April 2004 rent collected by the [715]*715husband, and funds allegedly withdrawn by the husband from the parties’ equity line of credit after the commencement of the action, failed to equitably distribute to her one half of the husband’s tax-deferred retirement account, and failed to award her counsel fees, and the husband cross-appeals, as limited by his brief, from so much of the same judgment as failed to direct the wife to account for certain apartment rental income collected by her after April 2004, failed to award him a separate property credit in the sum of $75,000, failed to direct that the balance of a purchase money loan from his father to the parties was to be repaid from the wife’s share of the proceeds of the sale of the subject apartment building, failed to direct that certain purported marital liabilities be paid from the proceeds of the sale of the marital residence, and failed to award him a distributive share of the parties’ tax-deferred retirement accounts.

Ordered that the appeal from the findings of fact and conclusions of law is dismissed, without costs or disbursements, as no appeal lies therefrom (see Soehngen v Soehngen, 58 AD3d 829, 830 [2009]); and it is further,

Ordered that appeal from the qualified medical child support order is dismissed as abandoned, without costs or disbursements; and it is further,

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the 6th, 7th, and 8th decretal paragraphs thereof, and substituting therefor a provision awarding the wife maintenance in the sum of $3,000 per month for a period of four years, commencing on the date of the judgment, (2) by adding a provision thereto directing that the remaining balance of a loan from the husband’s father to the parties toward the purchase of an apartment building be repaid out of the wife’s share of the proceeds of the sale of the apartment building in the principal sum of $48,388.99 plus 5% monthly interest from April 1, 2008, to the date of payment, (3) by adding a provision thereto directing that $9,000 borrowed from the custodian account of the parties’ daughter and $16,000 borrowed from the custodian account of the parties’ son, the remaining balance of the loan from DiFiore & Sons Custom Woodworking in the sum $20,552, and the remaining balance of the loan from the husband’s father in the sum of $11,000, be repaid from the proceeds of the sale of the marital residence prior to the distribution of the proceeds of the sale of the marital residence, and (4) by adding a provision thereto awarding the husband a credit in the sum of $11,953, representing his distributive share of the parties’ tax-deferred [716]*716retirement accounts; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a calculation of child support, including private school tuition and unreimbursed medical and dental expenses, in accordance herewith, and thereafter the entry of an appropriate amended judgment.

In this action for a divorce and ancillary relief, the wife contends that the Supreme Court erred in failing to rule upon and grant her application for prospective maintenance as of the date of the judgment. We agree. Although the Supreme Court failed to set forth any factors it considered with respect to maintenance, the record is sufficient for us to make the necessary findings pursuant to Domestic Relations Law § 236 (B) (6) (a) and render the appropriate determination (see Ortiz v Ortiz, 267 AD2d 991 [1999]). “In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties” (DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008] [internal quotation marks omitted]; see Domestic Relations Law § 236 [B] [6] [a]; Hartog v Hartog, 85 NY2d 36, 50-51 [1995]). “Maintenance is designed to give the spouse economic independence, and should continue only as long as is required to render the recipient self-supporting” (Palestra v Palestra, 300 AD2d 288, 289 [2002] [internal quotation marks and citations omitted]; see Schenfeld v Schenfeld, 289 AD2d 219 [2001]; Granade-Bastuck v Bastuck, 249 AD2d 444 [1998]). In view of the income and property of the parties, the age and health of the parties, the present and future earning capabilities of the parties, the ability of the wife to become self supporting, the parties’ preseparation standard of living, and the wife’s expected distributive award (see Domestic Relations Law § 236 [B] [6] [a]), $3,000 per month for four years from the date of the judgment is an appropriate award of maintenance (see Domestic Relations Law § 236 [B] [6] [a]; Weintraub v Weintraub, 79 AD3d 856, 857 [2010]; Bogannam v Bogannam, 60 AD3d 985, 986 [2009]; Fitzpatrick v Fitzpatrick, 43 AD3d 991, 992 [2007]; Milnarik v Milnarik, 23 AD3d 960, 962 [2005]; Dermigny v Dermigny, 23 AD3d 429, 430 [2005]).

We agree with the wife’s contention that the Supreme Court also erred in failing to rule on her application for an award of child support for the parties’ two children, and we remit the matter to the Supreme Court, Queens County, to calculate child support, as well as the parties’ respective pro rata shares of the [717]*717children’s private school tuition and unreimbursed medical and dental expenses. In doing so, the Supreme Court must impute income to the wife in the sum of $25,000 per year, representing her past demonstrated earning capacity in the secretarial/ administrative field, and must impute income of $116,000 to the husband in addition to his stated gross salary of $35,580, representing his past demonstrated earning capacity in the real estate development industry, resulting in total income of $151,580 for the husband (see Domestic Relations Law § 240 [1-b] [b] [5] [iv]; Wesche v Wesche, 77 AD3d 921, 923 [2010]; Lilikakis v Lilikakis, 308 AD2d 435, 436 [2003]; Brown v Brown, 239 AD2d 535 [1997]).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hartog v. Hartog
647 N.E.2d 749 (New York Court of Appeals, 1995)
Lewis v. Lewis
6 A.D.3d 837 (Appellate Division of the Supreme Court of New York, 2004)
McKeever v. McKeever
8 A.D.3d 702 (Appellate Division of the Supreme Court of New York, 2004)
Corless v. Corless
18 A.D.3d 493 (Appellate Division of the Supreme Court of New York, 2005)
Dermigny v. Dermigny
23 A.D.3d 429 (Appellate Division of the Supreme Court of New York, 2005)
Milnarik v. Milnarik
23 A.D.3d 960 (Appellate Division of the Supreme Court of New York, 2005)
Fitzpatrick v. Fitzpatrick
43 A.D.3d 991 (Appellate Division of the Supreme Court of New York, 2007)
Diblasi v. Diblasi
48 A.D.3d 403 (Appellate Division of the Supreme Court of New York, 2008)
Higgins v. Higgins
50 A.D.3d 852 (Appellate Division of the Supreme Court of New York, 2008)
Soehngen v. Soehngen
58 A.D.3d 829 (Appellate Division of the Supreme Court of New York, 2009)
Bogannam v. Bogannam
60 A.D.3d 985 (Appellate Division of the Supreme Court of New York, 2009)
Bernholc v. Bornstein
72 A.D.3d 625 (Appellate Division of the Supreme Court of New York, 2010)
Wesche v. Wesche
77 A.D.3d 921 (Appellate Division of the Supreme Court of New York, 2010)
Weintraub v. Weintraub
79 A.D.3d 856 (Appellate Division of the Supreme Court of New York, 2010)
Savage v. Savage
155 A.D.2d 336 (Appellate Division of the Supreme Court of New York, 1989)
Bronstein v. Bronstein
203 A.D.2d 703 (Appellate Division of the Supreme Court of New York, 1994)
Brown v. Brown
239 A.D.2d 535 (Appellate Division of the Supreme Court of New York, 1997)
Granade-Bastuck v. Bastuck
249 A.D.2d 444 (Appellate Division of the Supreme Court of New York, 1998)
Ortiz v. Ortiz
267 A.D.2d 991 (Appellate Division of the Supreme Court of New York, 1999)
Ferina v. Ferina
286 A.D.2d 472 (Appellate Division of the Supreme Court of New York, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
85 A.D.3d 714, 925 N.Y.S.2d 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/difiore-v-difiore-nyappdiv-2011.