Quarty v. Quarty

96 A.D.3d 1274, 948 N.Y.S.2d 130
Appellate Division of the Supreme Court of the State of New York·Decided June 21, 2012·Published·Cited by 16 cases

Opinion

Stein, J.

Cross appeals from an order of the Supreme Court (Burns, J.), entered March 30, 2011 in Otsego County, ordering, among other things, equitable distribution of the parties’ marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in September 20001 and have a daughter (born in 2000). The wife also has a son (born in 1996) from a prior marriage. She has full custody of her son and does not receive support from the child’s father. In 2009, the parties each commenced separate actions for divorce, which were subsequently consolidated. In March 2010, they entered into a stipulation in which they resolved, among other things, issues of child custody and visitation, as well as the division of certain personal property. After a nonjury trial was held on the remaining issues including, as relevant here, equitable distribution and maintenance, Supreme Court entered an order directing that the marital residence be sold and the marital debts be paid from the proceeds of said sale. The court also awarded the husband spousal maintenance in the amount of $1,100 per month for 30 months, a share of the wife’s pension and a distributive award in the amount of $155,372 — to be paid in 396 monthly installments — based on the wife’s enhanced earnings as a nurse practitioner. A judgment of divorce was thereafter entered. The wife now appeals and the husband cross-appeals.2

We begin with a review of Supreme Court’s award of maintenance. “Maintenance is designed to provide temporary support while one spouse gains skills, education or experience necessary to become self-sufficient” (Burtchaell v Burtchaell, 42 AD3d 783, 785 [2007] [citation omitted]; see Roberto v Roberto, 90 AD3d 1373, 1376 [2011]). The amount and duration of maintenance are generally within the trial court’s discretion and we [1276] will not disturb the court’s determination where, as here, the court has considered the statutory factors and set forth its reasoning and such determination is supported by the record (see Harrington v Harrington, 93 AD3d 1092, 1094 [2012]). Here, the wife contends that this Court should vacate the award of maintenance in its entirety because Supreme Court failed to sufficiently set forth the statutory factors it considered and failed to consider the parties’ predivorce standard of living, and because the husband is capable of being self-supporting. Conversely, the husband argues that the maintenance award should be nondurational because he is unable to be self-supporting due to his visual impairment.

At the time of their marriage, the husband was “legally blind” and he currently uses a guide dog, glasses and/or binoculars to assist him in certain tasks. At the time of the marriage, the husband was performing various odd jobs such as snowplowing and mowing with a tractor, as well as other types of property maintenance at a camp in exchange for free housing. When the parties first moved into the marital residence, the husband was responsible for maintenance of the exterior of the residence and assorted home improvement projects. The wife testified that the husband was also capable of performing certain household chores during the marriage, but that some tasks were very time-consuming for him. Although the husband admitted that he previously had employable skills, he claimed that his vision has since deteriorated,3 rendering him unable to maintain employment.

The parties had been married for approximately 8V2 years when the first action for divorce was commenced. At the time of trial, the husband was 57 years old and the wife was 34 years old. The husband was residing in a rented apartment and was receiving Social Security disability income of approximately $10,920 per year. The wife was earning $92,000 per year4 and was receiving Social Security benefits for the parties’ daughter in the amount of $440 per month.

[1277] In our view, while the record evidence pertaining to the husband’s medical conditions and ability to become self-supporting is sparse, the award of spousal maintenance to the husband of $1,100 per month for 30 months is adequately supported by the record and is not an improvident exercise of Supreme Court’s discretion. Supreme Court properly listed the statutory factors and specified the ones it considered (see Domestic Relations Law § 236 [B] [6]). Moreover, the record reveals that the parties’ predivorce standard of living was modest and the maintenance award is a reflection of that standard (see Burtchaell v Burtchaell, 42 AD3d at 785; Carman v Carman, 22 AD3d 1004, 1008-1009 [2005]). In addition, according due deference to Supreme Court’s credibility assessments, we discern no basis to disturb that court’s implicit finding that the husband failed to convincingly demonstrate that he lacks the ability to work in some capacity. Accordingly, in our view, the determination to award durational maintenance was a proper exercise of Supreme Court’s discretion (see Burtchaell v Burtchaell, 42 AD3d at 785) and provided a reasonable period of time to enable the husband to re-enter the work force and become self-sufficient.

We turn next to Supreme Court’s determination that the husband was entitled to a distributive award of the wife’s enhanced earnings resulting from the degrees and licenses she obtained during the marriage culminating in a nurse practitioner’s license. Although the wife concedes that such enhanced earnings constitute marital property, she contends that the husband is not entitled to a share of their value because he failed to demonstrate that he made a significant contribution to her acquisition thereof and, alternatively, that the court’s valuation was in error. The husband argues only that Supreme Court should have required that the distributive award be paid over a shorter period of time.

It is well established that “[a] nontitled spouse seeking a portion of the enhanced earning potential attributable to a professional license or degree of a titled spouse is required to establish that a substantial contribution was made to the acquisition of the degree or license” (Esposito-Shea v Shea, 94 AD3d 1215, 1217 [2012] [internal quotation marks and citations omitted]). In determining whether a nontitled spouse’s contributions were substantial, we consider, among other things, whether that spouse altered his or her schedule and/or took on additional household duties that he or she would not have otherwise performed, in order to enable the titled spouse to obtain the license or degree (see id.; Carman v Carman, 22 AD3d at 1006-[1278]*12781007; Farrell v Cleary-Farrell, 306 AD2d 597, 599-600 [2003]). Where the attainment of the license or degree is more directly attributable to the efforts of the titled spouse, it is appropriate to limit the nontitled spouse’s share of the enhanced earning capacity (see Esposito-Shea v Shea, 94 AD3d at 1217; Evans v Evans, 55 AD3d 1079, 1080-1081 [2008]; Farrell v Cleary-Farrell, 306 AD2d at 599).

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Quarty v. Quarty, 96 A.D.3d 1274, 948 N.Y.S.2d 130 (N.Y. Ct. App. 2012).

96 A.D.3d 1274 (Quarty v. Quarty) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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