Castello v. Castello

• Decision Date: 09 November 2016
• Citation: 2016 N.Y. Slip Op. 07287,144 A.D.3d 723,41 N.Y.S.3d 250
• Parties: Joann CASTELLO, respondent, v. Anthony CASTELLO, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 723

41 N.Y.S.3d 250

2016 N.Y. Slip Op. 07287

Joann CASTELLO, respondent,

v.Anthony CASTELLO, appellant.

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

Nov. 9, 2016.

Steven L. Abel, Nyack, NY, for appellant.

MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.

Appeal by the defendant from stated portions of a judgment of divorce of the Supreme Court, Rockland County (Gerald E. Loehr, J.), dated September 11, 2013. The judgment of divorce, upon an amended decision of that court dated August 5, 2013, made after a nonjury trial, inter alia, (a) imputed annual income to the defendant in the amount of $240,000, (b) awarded the plaintiff maintenance in the amount of $5,500 per month until she reaches the age of 63 years and 10 months and is eligible for Social Security, or until her remarriage or the death of either party, (c) awarded the plaintiff child support for the children Jennifer and Melissa, (d) directed the plaintiff to pay only 17% of unreimbursed medical expenses for the children Jennifer and Melissa, and only 12.5% of college expenses for the child Melissa, (e) directed the defendant to pay all college expenses for the child Jennifer for the fall 2013 semester, (f) directed that the defendant was solely responsible for repayment of the children's college loans, and (g) directed the defendant to pay for the car leases for all family members.

ORDERED that the judgment of divorce is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff maintenance in the amount of $5,500 per month until she reaches the age of 63 years and 10 months of age and is eligible for Social Security, or until her remarriage or the death of either party, and substituting therefor a provision awarding the plaintiff maintenance in the amount of $5,500 per month for a period of eight years from the date of the judgment of divorce, or until her remarriage or the death of either party, (2) by deleting the provision thereof directing the plaintiff to pay 17% of unreimbursed medical expenses for the children Jennifer and Melissa, and substituting therefor a provision directing the plaintiff to pay 36.4% of those unreimbursed medical expenses, (3) by deleting the provision thereof directing the defendant to pay all college expenses for the child Jennifer for the fall 2013 semester, and substituting therefor a provision directing the defendant to pay 87.5%, and the plaintiff to pay 12.5%, of those college expenses, and (4) by deleting the provision thereof directing the defendant to pay for the car leases for all family members, and substituting therefor a provision directing the defendant to pay for the car leases for the children Jennifer and Melissa; as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in 1986, and have four children, two of whom, Jennifer and Melissa, were unemancipated at the time of the trial in this action. After the children were born, the plaintiff was the primary caregiver for the children and a homemaker. The defendant owned a construction company. On August 27, 2012, after 26 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief. At that time, the plaintiff was 49 years old and the defendant was 50. The Supreme Court appointed a neutral financial evaluator to determine the value of the defendant's construction business and his income relating thereto. The evaluator determined that the value of the company was “nil,” and that the defendant's income was between $160,000 and $240,000.

Following a nonjury trial, the Supreme Court entered a judgment which, inter alia, (1) imputed annual income to the defendant in the amount of $240,000, (2) awarded the plaintiff maintenance in the amount of $5,500 per month until she reaches the age of 63 years and 10 months and is eligible for Social Security, or until her remarriage or either parties' death, (3) awarded the plaintiff child support for Jennifer and Melissa, (4) directed the plaintiff to pay 17% of unreimbursed medical expenses for Jennifer and Melissa, and 12.5% of college expenses for Melissa, (5) directed the defendant to pay all college expenses for Jennifer for the fall 2013 semester, (6) directed that the defendant was solely responsible for repayment of the children's college loans, and (7) directed the defendant to pay for the car leases for all family members. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court correctly imputed income to him from his construction business. “A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed” (Scammacca v. Scammacca, 15 A.D.3d 382, 382, 790 N.Y.S.2d 482 [internal quotation marks omitted]; see Sutaria v. Sutaria, 123 A.D.3d 909, 910, 2 N.Y.S.3d 124 ; Cusumano v. Cusumano, 96 A.D.3d 988, 989, 947 N.Y.S.2d 175 ). The trial court is “[a]fforded considerable discretion in determining whether to impute income to a [party]” (Matter of Kiernan v. Martin, 108 A.D.3d 767, 768, 970 N.Y.S.2d 69 ; see Kessler v. Kessler, 118 A.D.3d 946, 948, 991 N.Y.S.2d 43 ; Lago v. Adrion, 93 A.D.3d 697, 699, 940 N.Y.S.2d 287 ), and the court's credibility determinations will be accorded deference on appeal (see Matter of Kiernan v. Martin, 108 A.D.3d at 768, 970 N.Y.S.2d 69 ). Here, the court providently exercised its discretion in imputing an annual income of $240,000 to the defendant, in reliance upon the report of the neutral financial evaluator, and the testimony at trial, which established that the defendant had total control over the bookkeeping and finances of the company and funneled personal expenses through the company (see Sutaria v. Sutaria, 123 A.D.3d at 910, 2 N.Y.S.3d 124 ; Cusumano v. Cusumano, 96 A.D.3d at 989, 947 N.Y.S.2d 175 ).

“[I]t is well settled that 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 own unique facts” (Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 ; see Lamparillo v. Lamparillo, 130 A.D.3d 580, 581, 12 N.Y.S.3d 296 ; DiBlasi v. DiBlasi, 48 A.D.3d 403, 404, 852 N.Y.S.2d 195 ). The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting (see Gordon v. Gordon, 113 A.D.3d 654, 655, 979 N.Y.S.2d 121 ; DiBlasi v. DiBlasi, 48 A.D.3d at 404, 852 N.Y.S.2d 195 ; Bains v. Bains, 308 A.D.2d 557, 559, 764 N.Y.S.2d 721 ). “The factors to be considered in a maintenance award are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties” (Gordon v. Gordon, 113 A.D.3d at 654–655, 979 N.Y.S.2d 121 ; see Domestic Relations Law § 236[B][6][a] ; Carroll v. Carroll, 125 A.D.3d 710, 711, 3 N.Y.S.3d 397 ). Another factor, which this Court has considered in a marriage of long duration, is whether the party seeking maintenance was the primary homemaker and caregiver for the parties' children during the marriage (see McCaffrey v. McCaffrey, 107 A.D.3d 1106, 1106–1107, 967 N.Y.S.2d 162 ; Rodriguez v. Rodriguez, 70 A.D.3d 799, 802, 894 N.Y.S.2d 147 ).

Here, the Supreme Court properly awarded the plaintiff maintenance in the amount of $5,500 per month. However, the directive regarding the duration of the award, until the plaintiff reaches the age of 63 years and 10 months and is eligible for Social Security, or until her remarriage or the death of either party, was an improvident exercise of discretion (see Naik v. Naik, 125 A.D.3d 734, 3 N.Y.S.3d 405 ). The plaintiff, who was 50 years old at the time of trial, testified that she was in good health, had no medical issues which would prevent her from working, and had many years of phlebotomy experience, a cosmetology license, and a real estate license which could be renewed with minimal effort. In addition, the plaintiff testified that she could make real estate referrals while working full-time at another job. Although the marriage was of a long duration, the plaintiff stayed home to raise the children, and she did not receive a substantial equitable distribution package, we also consider that the plaintiff no longer had child-rearing responsibilities, and that the defendant was paying for most of the expenses of the children, and was responsible for paying the mortgages and costs of the marital home, as well as those of a rental property and a vacation property owned by the parties. As such, an award of maintenance of $5,500 per month for eight years, or until the plaintiff's remarriage or the death of either party, would afford the plaintiff a sufficient opportunity to become self-supporting (see Walter v. Walter, 38 A.D.3d 763, 765, 835 N.Y.S.2d 196 ; see also Perdios v. Perdios, 135 A.D.3d 840, 842, 24 N.Y.S.3d 680 ; Ventimiglia v. Ventimiglia, 307 A.D.2d 993, 995, 763 N.Y.S.2d 486, 487 ).

Contrary to the defendant's contention, the Supreme Court, upon finding that the plaintiff was the custodial parent of Jennifer and Melissa, the two unemancipated children, properly directed the defendant to pay child support for those children (see Domestic Relations Law § 240[1–b][f][10] ). To the extent that the defendant asserts that it was improper to award child support to the plaintiff because, after the trial, the unemancipated children...