Unger-Matusik v. Matusik

276 A.D.2d 936, 715 N.Y.S.2d 449, 2000 N.Y. App. Div. LEXIS 10822
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 26, 2000
StatusPublished
Cited by9 cases

This text of 276 A.D.2d 936 (Unger-Matusik v. Matusik) 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
Unger-Matusik v. Matusik, 276 A.D.2d 936, 715 N.Y.S.2d 449, 2000 N.Y. App. Div. LEXIS 10822 (N.Y. Ct. App. 2000).

Opinion

Carpinello, J.

Cross appeals from a judgment of the Supreme Court (Reilly, Jr., J.), ordering, inter alia, equitable distribution of the parties’ marital property, entered June 15, 1998 in Saratoga County, upon a decision of the court.

The parties to this action were married for approximately 27 years when plaintiff commenced this action for divorce in October 1996. At that time, plaintiff was 48 years old and defendant was 47 years old and their two children were emancipated. Of the myriad of issues resolved below — either by stipulation between the parties or by Supreme Court following [937]*937several days of trial and the parties’ subsequent submission of affidavits in lieu of further oral testimony — only a handful are presently at issue on this appeal. With one exception, none of the parties’ contentions warrants a modification of Supreme Court’s decision.

In making its equitable distribution award, Supreme Court concluded that all marital property would be distributed equally and, after assigning a value to these assets and making adjustments to reflect the distribution of all marital debt, it determined that plaintiff was entitled to a distributive award of $21,803.50. It then directed that this amount be dispersed from an escrow account which had been funded with the proceeds from the sale of a parcel of real property sold during the pendency of the divorce proceeding. Although defendant does not take issue with the distributive award itself, he claims that Supreme Court improvidently exercised its discretion in directing that it be paid from the escrowed funds. He also argues that the court erred in failing to direct that any capital gains tax resulting from the sale of this property be paid out of the escrow account before any distribution. Notably, both parties had already agreed to be responsible for one half of any gains tax.

Plaintiff, in response, claims that Supreme Court erred in distributing the marital property on an equal basis. According to her, the court should have given more consideration to defendant’s wasteful dissipation of marital assets and fashioned a distribution on an unequal basis in her favor. Noting the appropriate standard of review upon which this Court is to judge these aspects of Supreme Court’s equitable distribution award, i.e., the abuse of discretion standard (see, e.g., Roffey v Roffey, 217 AD2d 864, 866; Carpenter v Carpenter, 202 AD2d 813, 814; Simmons v Simmons, 159 AD2d 775, 777-778), we find no abuse of that discretion.

With respect to defendant’s claims of error, we first point out that he never requested during the proceedings below that any capital gains tax be paid from the funds in the escrow account (see generally, Carpenter v Carpenter, supra). We further note that at the time Supreme Court rendered its decision in this matter, the precise amount of any tax liability was unknown (compare, Myers v Myers, 255 AD2d 711, 714). Defendant himself had postulated in his papers to Supreme Court that he “fully anticipate [d] that there will not be any significant taxes to be paid” (emphasis supplied). Under these circumstances, it can hardly be deemed an abuse of discretion to fail to direct that this unspecified sum be deducted from the escrow account [938]*938especially in the absence of a request for same (see generally, Vicinanzo v Vicinanzo, 193 AD2d 962, 968; Simmons v Simmons, supra, at 777).

Nor are we persuaded that Supreme Court abused its discretion in directing the payment of plaintifFs distributive award from these liquid marital funds (cf., Bohnsack v Bohnsack, 185 AD2d 533, 536; Romano v Romano, 139 AD2d 979; Nolan v Nolan, 107 AD2d 190, 194). Indeed, the manner in which a distributive award is to be made is discretionary (see, Simmons v Simmons, supra, at 777). Here, considering the availability of these funds, and defendant’s receipt of one half of the proceeds from the sale of the marital residence, payment of the award from the escrow account, as opposed to payment in installments, is not an abuse of discretion (see, Domestic Relations Law § 236 [B] [5] [e]; Hunter v Hunter, 206 AD2d 700, 702-703; cf., Basile v Basile, 199 AD2d 649, 652). Finally, Supreme Court properly weighed all statutory factors (see, Domestic Relations Law § 236 [B] [5] [d]), including defendant’s alleged wasteful disposition of marital assets (see, Domestic Relations Law § 236 [B] [5] [d] [11]), in rendering its discretionary determination that an equal distribution of marital property was warranted. Supreme Court found, and the record confirms, that plaintiff failed to meet her burden of proving that defendant in fact wastefully dissipated any marital asset (see, Strang v Strang, 222 AD2d 975, 977-978). Accordingly, its equal distribution of the marital assets will not lie disturbed.

Defendant next claims that Supreme Court abused its discretion in awarding plaintiff lifetime spousal maintenance. We agree. After reviewing the record in conjunction with the factors outlined under Domestic Relations Law § 236 (B) (6) (a), we find that maintenance is warranted but it should be limited in its duration. Plaintiff was only 48 years old when the action was commenced and, despite testimony about various medical ailments, was found by Supreme Court to be in good health (see, Domestic Relations Law § 236 [B] [6] [a] [2]).

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Bluebook (online)
276 A.D.2d 936, 715 N.Y.S.2d 449, 2000 N.Y. App. Div. LEXIS 10822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unger-matusik-v-matusik-nyappdiv-2000.