Culnan v. Culnan

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAHONEY
• Citation: Culnan v. Culnan, 530 N.Y.S.2d 688, 142 A.D.2d 805 (N.Y. App. Div. 1988)
• Decision Date: 14 July 1988
• Parties: John J. CULNAN, Appellant, v. Vicki A. CULNAN, Respondent.

Page 688

530 N.Y.S.2d 688

142 A.D.2d 805

John J. CULNAN, Appellant, v. Vicki A. CULNAN, Respondent.

Supreme Court, Appellate Division Third Department.

July 14, 1988.

Michael R. Traynor, Albany, for appellant.

James C. Hayes, Amsterdam, for respondent.

Before MAHONEY, P.J., and KANE, MIKOLL, YESAWICH and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the Supreme Court (Ford, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered December 11, 1987 in Albany County, upon a decision of the court, without a jury.

The parties were married in September 1977 and had a child in June 1979. They separated in August 1982 and this matrimonial action was commenced in July 1984. The parties were granted a divorce and custody of the child was awarded to defendant. Supreme Court equitably distributed marital property by ordering plaintiff to pay defendant $2,000 as a share of cash accumulated during the marriage and $5,000 as a share of plaintiff's retirement plan. Supreme Court also ordered plaintiff to pay defendant $85 per week as maintenance and $80 per week as child support. Finally, plaintiff was ordered to pay $5,196.75 in counsel fees within 30 days. Plaintiff appeals.

Initially, plaintiff challenges the award of $2,000 as a share of cash which was considered to be marital property. While funds in bank accounts held by the parties at the time of the commencement of a matrimonial action may well constitute marital property, property acquired subsequent thereto does not ( see, Lennon v. Lennon, 124 A.D.2d 788, 790, 508 N.Y.S.2d 507). Here, the uncontradicted evidence indicates that plaintiff had no bank accounts when this action was commenced. Several months later, he opened an account with his new fiancee with an initial deposit of $50. Within three months plaintiff and his fiancee had deposited about $4,000 in that account, primarily from plaintiff's salary and his fiancee's income tax refunds. No contradictory evidence was offered. Thus, this account clearly was not marital property and was not subject to equitable distribution.

Next, Supreme Court ruled that plaintiff's pension was marital property and ordered him to pay to defendant $5,000 as her share of such pension.

Vested rights in a noncontributory pension plan are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action, even though the rights are unmatured at the time the action is begun ( Majauskas v. Majauskas, 61 N.Y.2d 481, 485-486, 474 N.Y.S.2d 699, 463 N.E.2d 15).

This court has also applied the principle in the case of a nonvested pension plan ( Reed v. Reed, 93 A.D.2d 105, 110-111, 462 N.Y.S.2d 73). Here, the evidence indicates that plaintiff joined the New York State Policemen's and Firemen's Retirement System in October 1977. Thus, the pension was properly determined to be marital property. Plaintiff had only been in the Retirement System for about seven years when this action was commenced. The record does not indicate whether plaintiff's pension rights were vested at that time, nor is there any proof regarding the current worth of the pension. The only proof concerning plaintiff's pension is a letter from the Retirement System stating that he would be eligible to retire in October 2002 and that, assuming his current salary will be his highest and that he completes 25 years of service, he will receive $5,877 per year upon retirement. Defendant offered no proof whatsoever regarding the present or future value of the pension or establishing what amount she was entitled to. Indeed, it does not appear from the record that she sought a distribution of plaintiff's pension rights. In the absence of any proof regarding the value of plaintiff's pension, Supreme Court's decision to value defendant's share at $5,000 was mere speculation. Defendant had the burden of establishing the value of the pension interest she is seeking by actual evidence or some other evidence establishing the value of the pension ( see, Del Gado v. Del Gado, 129 A.D.2d 426, 428, 513 N.Y.S.2d 689). Since she failed to do so, Supreme Court was not required to speculate as to the value.

Next, plaintiff contends that the awards of $85 per week maintenance and $80 per week child support are excessive. We disagree. There was significant evidence in the record dealing with the relative financial situations of the parties and the amounts ordered by Supreme Court for maintenance and child support are fully justified by such evidence. However, we disagree with Supreme Court's decision to award indefinite maintenance.

Implicit in the scheme of the Equitable Distribution Law is the view that:

* * * upon dissolution of the marriage there should be a winding up of the parties' economic affairs and a severance of their economic ties by an equitable distribution of the marital assets. Thus, the concept of alimony, which often served as a means of lifetime support and dependence for one spouse upon the other long after the marriage was over, was replaced with the concept of maintenance which seeks to allow "the recipient spouse an opportunity to achieve independence" ( O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712, quoting Assembly Memorandum, 1980 NY Legis Ann, at 130).

Thus, even where the circumstances of a case warrant an award of maintenance, an important consideration is the duration of such award. The time period is that necessary to give a spouse a reasonable amount of time to become self-supporting ( see, Matsuo v. Matsuo, 124 A.D.2d 864, 866, 508 N.Y.S.2d 630; Stevens v. Stevens, 107 A.D.2d 987, 989, 484 N.Y.S.2d 708; 3 Foster, Freed and Brandes, Law and the Family § 19:1, at 723 ). Indefinite maintenance has been upheld where a marriage was of long duration and a spouse was older and unlikely to have an opportunity to obtain the education or experience necessary to become self-supporting in the reasonably foreseeable future ( see, Murphy v. Murphy, 110 A.D.2d 688, 487 N.Y.S.2d 812). However, it has been limited where the recipient spouse is relatively young and healthy and able to enter the work force ( see, Gundlah v. Gundlah, 116 A.D.2d 1026, 498 N.Y.S.2d 641, lv. denied 68 N.Y.2d 603, 506 N.Y.S.2d 1025, 497 N.E.2d 705; Hillmann v. Hillmann, 109 A.D.2d 777, 777-778, 486 N.Y.S.2d 87). Here, defendant is almost 29 years...