Behrmann v. Behrmann

• Decision Date: 27 May 1994
• Citation: 613 N.Y.S.2d 80,204 A.D.2d 1076
• Parties: Elizabeth BEHRMANN, Respondent-Appellant, v. Douglas BEHRMANN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 80

613 N.Y.S.2d 80

204 A.D.2d 1076

Elizabeth BEHRMANN, Respondent-Appellant, v. Douglas BEHRMANN, Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

May 27, 1994.

Law Offices Warren S. Hoffman by Warren Hoffman, Mineola, for appellant-respondent.

Kraemer and Mulligan by Dwight Kraemer, Westbury, for respondent-appellant.

Before GREEN, J.P., and BALIO, FALLON, DOERR and BOEHM, JJ.

MEMORANDUM:

Supreme Court did not err by including in the judgment language authorized by Uniform Rules for Trial Courts (22 NYCRR) § 202.50(b) (see, 22 NYCRR, subtit D, ch III, subch B) that defendant's maintenance obligation was exclusive of extraordinary medical or dental expenses and extraordinary repairs to the marital residence. A party retains the right to petition the court for payment of extraordinary expenses over and above normal maintenance and child support (see, Waterman v. Waterman, 160 A.D.2d 865, 867, 554 N.Y.S.2d 298; Dapolito v. Dapolito, 150 A.D.2d 375, 540 N.Y.S.2d 822). Supreme Court's award of lifetime maintenance to plaintiff was not an abuse of discretion, given this 21-year marriage, plaintiff's age, and her lack of education or job skills. Supreme Court's conclusion that plaintiff is unlikely to become self-supporting is supported by the evidence (see, Cattano v. Cattano, 171 A.D.2d 547, 567 N.Y.S.2d 605; Reingold v. Reingold, 143 A.D.2d 126, 127, 531 N.Y.S.2d 585, appeal dismissed 73 N.Y.2d 851, 537 N.Y.S.2d 495, 534 N.E.2d 333; Kerlinger v. Kerlinger, 121 A.D.2d 691, 504 N.Y.S.2d 454). Nor did Supreme Court abuse its discretion by requiring defendant to contribute $5,000 toward the attorney's fees of plaintiff. Contrary to defendant's argument, it is not necessary for a party to exhaust his or her own resources to qualify for an award of attorney's fees because indigency is not a prerequisite for such an award (see, Lieberman v. Lieberman, 187 A.D.2d 567, 590 N.Y.S.2d 135). Given plaintiff's substantial separate property, however, we conclude that Supreme Court did not abuse its discretion in denying plaintiff's request that defendant pay all her attorney's fees. Finally, Supreme Court's determination that the sum of $54,000, contributed by plaintiff's mother to the construction of the marital residence, is marital property is supported by the evidence (see, Morrissey v. Morrissey, 153 A.D.2d 609, 611, 544 N.Y.S.2d 643; Ackley v. Ackley, 100 A.D.2d 153, 155-156, 472 N.Y.S.2d 804, lv. denied 63 N.Y.2d 605, 481...