Brinkmann v. Brinkmann

• Decision Date: 19 July 2017
• Citation: 58 N.Y.S.3d 559,152 A.D.3d 637
• Parties: Valentinus BRINKMANN, respondent, v. Linda BRINKMANN, appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 637

58 N.Y.S.3d 559

Valentinus BRINKMANN, respondent,

v.Linda BRINKMANN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 19, 2017.

Anthony A. Capetola, Williston Park, NY (Robert P. Johnson of counsel), for appellant.

Law Office of David P. Fallon, PLLC, Sayville, NY, for respondent.

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Carol MacKenzie, J.), entered August 29, 2014.The judgment, insofar as appealed from, awarded the defendant maintenance in the amount of $2,500 per month until she reaches the age of 66, made an equitable distribution of the parties' marital assets, and awarded the defendantcounsel fees in the sum of only $5,000.

ORDERED that the appeal from so much of the judgment as awarded the defendantcounsel fees in the sum of $5,000 is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff and the defendant were married in 1975.The plaintiff is an electrical contractor and the owner of Brinkmann Electric Corporation(hereinafter Brinkmann Electric), a company that he purchased from his father during the marriage.The defendant worked as bookkeeper for Brinkmann Electric throughout the duration of the parties' marriage.In August 2011, the plaintiff commenced this action for a divorce and ancillary relief.In December 2012, the parties entered into a stipulation resolving issues relating to the equitable distribution of certain marital property.Pursuant to the stipulation, the defendant agreed to relinquish any interest that she may have in Brinkmann Electric in exchange for sole ownership of a corporate entity that the parties formed during the marriage which owns a parcel of commercial real estate in West Babylon.The action proceeded to a trial in March 2014.By judgment entered August 29, 2014, the Supreme Court, among other things, directed that the parties equally divide their remaining marital property, directed that the plaintiff pay maintenance to the defendant in the monthly sum of $2,500 until she reaches 66 years of age, and awarded the defendantcounsel fees in the sum of $5,000.

"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts"( Repetti v. Repetti,147 A.D.3d 1094, 1096, 47 N.Y.S.3d 447[internal quotation marks omitted];seeKaprov v. Stalinsky,145 A.D.3d 869, 873–874, 44 N.Y.S.3d 123;Diwan v. Diwan,135 A.D.3d 807, 809, 24 N.Y.S.3d 352 )."The factors to consider in awarding maintenance include ‘the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’ "( Horn v. Horn,145 A.D.3d 666, 668, 43 N.Y.S.3d 395, quotingKret v. Kret,222 A.D.2d 412, 412, 634 N.Y.S.2d 719 ).Here, the Supreme Court considered these relevant factors and providently exercised its discretion in awarding maintenance to the defendant in the amount of $2,500 per month until she reaches the age of 66 (seeSansone v. Sansone,144 A.D.3d 885, 887, 41 N.Y.S.3d 532;Maddaloni v. Maddaloni,142 A.D.3d 646, 654, 36 N.Y.S.3d 695 ).We find no reason to disturb the court's credibility determinations regarding the defendant's ability to work and the plaintiff's finances, which determinations are entitled to deference on appeal (seeMassirman v. Massirman,78 A.D.3d 1021, 1022, 911 N.Y.S.2d 462 ).

The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors (seeDomestic Relations Law § 236[B][5][d];Holterman v. Holterman,3 N.Y.3d 1, 7, 781 N.Y.S.2d 458, 814 N.E.2d 765 )."Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper"( Taylor v. Taylor,140 A.D.3d 944, 945–946, 34 N.Y.S.3d 127;seeDomestic Relations Law § 236[B][5][d];Halley–Boyce v. Boyce,108 A.D.3d 503, 504, 969 N.Y.S.2d 467 )."A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed"( Aloi v. Simoni,82 A.D.3d 683, 685, 918 N.Y.S.2d 506[...