Soule v. Soule

• Decision Date: 16 July 1998
• Citation: 676 N.Y.S.2d 701,252 A.D.2d 768
• Parties: , 1998 N.Y. Slip Op. 7055 C. David SOULE, Appellant-Respondent, v. Kim M. SOULE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 701

676 N.Y.S.2d 701

252 A.D.2d 768, 1998 N.Y. Slip Op. 7055

C. David SOULE, Appellant-Respondent, v. Kim M. SOULE, Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

July 16, 1998.

Lester A. Sittler, Fly Creek, for appellant-respondent.

Vitanza, Shabus & Fertig (Thomas A. Vitanza of counsel), Norwich, for respondent-appellant.

Before: CARDONA, P.J., CREW, YESAWICH, SPAIN and GRAFFEO, JJ.

CREW, Justice.

Cross appeals from a judgment of the Supreme Court (Ingraham, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered June 16, 1997 in Otsego County, upon a decision of the court.

Plaintiff and defendant were married in August 1983 and have two children, born in 1984 and 1990. Following the parties' separation in January 1995, plaintiff and defendant executed a written agreement providing, inter alia, that they would maintain separate residences and share joint custody of the children. ¹ Plaintiff thereafter commenced this action for divorce in October 1995 seeking, inter alia, equitable distribution of the parties' marital property. Defendant answered and counterclaimed for, among other things, custody of the parties' minor children.

At the conclusion of the bench trial that followed, Supreme Court awarded equitable distribution of the parties' marital property, which resulted in an award to defendant of $112,878 (consisting of $18,754 in assets already in her possession and a lump-sum award of $94,124). Additionally, Supreme Court ordered plaintiff to pay defendant $400 per week in maintenance until such time as defendant dies or remarries and awarded child support in the amount of $361 per week, with both payments retroactive to October 31, 1995. ² In so doing, Supreme Court fixed plaintiff's maintenance and support arrears at $8,800 and $11,870, respectively, and also awarded defendant $3,000 in counsel fees. ³ These cross appeals by the parties ensued.

Initially, both plaintiff and defendant contend that Supreme Court erred with respect to its award of maintenance. Plaintiff, although not directly challenging the weekly sum awarded, contends that such maintenance should be of limited duration. Defendant, on the other hand, asserts that while a permanent award of maintenance is entirely appropriate, the weekly sum ordered by Supreme Court is inadequate to permit her to maintain her predivorce standard of living.

In our view, although the weekly sum fixed by Supreme Court is appropriate given, inter alia, the length of the marriage, the parties' respective incomes/earning capacities and the lifestyle that they enjoyed prior to their separation and divorce, we agree with plaintiff that permanent maintenance is not warranted under the circumstances present here. Even taking into consideration defendant's educational background (high school diploma) and prior employment experience (waitressing and tending bar), the record as a whole demonstrates that defendant has the capacity to become self-supporting.

At the time of trial, defendant was 37 years old and generally in good health. Although she admittedly is the mother of two young children, both her daughter (born in 1984) and her son (born in 1990) attend school and, hence, defendant is able to pursue employment and/or educational opportunities during those hours. Further, while defendant makes much of her limited employment history, she already has demonstrated her ability to be retrained, as evidenced by her obtaining certification as a personal trainer and securing employment as a teacher's aide. Thus, even crediting her testimony as to the limited employment opportunities presently available to her in the Village of Cooperstown, Otsego County, an award of maintenance of $400 per week for the next 10 years would provide defendant with both the time and the resources to pursue further education or retraining, thereby enabling her to, if necessary, ultimately seek employment elsewhere (cf., Timperio v. Timperio, 232 A.D.2d 857, 860, 648 N.Y.S.2d 773; Hapeman v. Hapeman, 229 A.D.2d 807, 811, 646 N.Y.S.2d 583). Accordingly, Supreme Court's judgment is modified to the extent that plaintiff is directed to pay defendant maintenance in the amount of $400 per week for the next 10 years, with said obligation terminating on June 16, 2008. ⁴

The remaining issues raised by the parties do not warrant extended discussion. Although there does not appear to be any dispute as to the amount of maintenance and child support paid by plaintiff during the pendency of the matrimonial action (for which, the record reveals, plaintiff received an appropriate credit), plaintiff contends that he is entitled to an additional credit for providing defendant with rent-free housing during the relevant time period and for the added expenses he allegedly incurred relative to the children. We find this argument to be unpersuasive. Following the parties' separation, plaintiff and defend...