Burns v. Burns, 1

• Decision Date: 28 May 1993
• Docket Number: No. 1,1
• Parties: Francine L. BURNS, Respondent-Appellant, v. Edward J. BURNS, Appellant-Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 888

598 N.Y.S.2d 888

193 A.D.2d 1104

Francine L. BURNS, Respondent-Appellant, v. Edward J. BURNS, Appellant-Respondent.

Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

May 28, 1993.

Alfred P. Kremer, Rochester, for appellant-respondent.

Francine L. Burns, respondent-appellant pro se.

Before GREEN, J.P., and PINE, BOOMER, DAVIS and BOEHM, JJ.

MEMORANDUM:

Defendant appeals and plaintiff cross-appeals from portions of the judgment of divorce insofar as it resolved the economic issues incident to their divorce.

We reject defendant's contention that Supreme Court erred in directing him to pay child support in the sum of $620 per week, retroactive to February 24, 1989 (see, Domestic Relations Law § 240[1-b]; Harmon v. Harmon, 173 A.D.2d 98, 578 N.Y.S.2d 897). The record shows, however, that defendant is paying support to meet all of the child's financial needs. Thus, we conclude that he is entitled to claim the child as an exemption for income tax purposes (see, Zogby v. Zogby, 158 A.D.2d 974, 551 N.Y.S.2d 126; Sheehan v. Sheehan, 152 A.D.2d 942, 943, 543 N.Y.S.2d 827; see also, 26 U.S.C. § 152[e].

Contrary to defendant's arguments, the court did not err in awarding plaintiff maintenance in the sum of $500 per week. The court properly took into consideration the parties' pre-divorce standard of living as well as the reasonable needs of plaintiff and the means of defendant (see, Domestic Relations Law § 236[B][6][a]; see also, Raviv v. Raviv, 153 A.D.2d 932, 934, 545 N.Y.S.2d 739). The court, however, should not have directed that maintenance be paid for an 11-year period. Plaintiff is approximately 42 years old, is in good health, has no child-care responsibilities and, in 1984, was awarded a master's degree in business administration (MBA) from the University of Rochester's Graduate School of Management. Thus, a maintenance award of $500 per week for a period of six years is adequate to give plaintiff a reasonable period of time in which to obtain employment and, if necessary, training so that she may become financially independent (see, Parris v. Parris, 136 A.D.2d 685, 524 N.Y.S.2d 99; Scheer v. Scheer, 130 A.D.2d 479, 515 N.Y.S.2d 61). Further, in order to secure payment of maintenance in the event of defendant's death, the court properly directed defendant to obtain life insurance for the benefit of plaintiff (see, Warshaw v. Warshaw, 169 A.D.2d 408, 409, 564 N.Y.S.2d 137). In view of our determination with respect to the duration of the maintenance award, however, we reduce the amount of that insurance to $125,000.

The court properly awarded plaintiff counsel fees without conducting an evidentiary hearing because the parties stipulated that counsel fees would be fixed by the trial court upon submission of affirmations (see, Olsan v. Olsan, 100 A.D.2d 776, 777, 474 N.Y.S.2d 57, appeal dismissed 63 N.Y.2d 649, 479 N.Y.S.2d 521, 468 N.E.2d 703; see also, Price v. Price, 115 A.D.2d 530, 496 N.Y.S.2d 464). Furthermore, the court did not abuse its discretion in awarding plaintiff counsel fees in the sum of $40,000 (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).

We conclude that the court properly determined the value of plaintiff's MBA (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 586- 587, 498 N.Y.S.2d 743, 489 N.E.2d 712; McGowan v. McGowan, 142 A.D.2d 355, 358-362, 535 N.Y.S.2d 990), and the value of defendant's interest in his law partnership (see, Rosenberg v. Rosenberg, 145 A.D.2d 916, 918-919, 536 N.Y.S.2d 605, amended 149 A.D.2d 985, 536 N.Y.S.2d 605, lv. denied 74 N.Y.2d 603, 543 N.Y.S.2d 396, 541 N.E.2d 425). The court's valuation of the marital residence is supported by testimony from plaintiff's real estate expert (see, Griffin v. Griffin, 115 A.D.2d 587, 588, 496 N.Y.S.2d 249). Additionally, the court's determination that the net marital estate be divided equally between the parties was proper in view of the parties' respective contributions to the marriage. The court made two errors, however, in determining the net marital estate subject to equitable distribution. First, the court erred in finding that the parties stipulated that the value of their boat, without...