Donnelly v. Donnelly

• Decision Date: 10 November 1988
• Citation: 534 N.Y.S.2d 766,144 A.D.2d 797
• Parties: Carole A. DONNELLY, Respondent, v. Philip L. DONNELLY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 766

534 N.Y.S.2d 766

144 A.D.2d 797

Carole A. DONNELLY, Respondent, v. Philip L. DONNELLY, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 10, 1988.

Breslin, Breslin & Breslin (Neil Breslin, of counsel), Albany, for appellant.

Robert Cohen, Ballston Lake, for respondent.

Before WEISS, J.P., and YESAWICH, HARVEY, MIKOLL and LEVINE, JJ.

WEISS, Justice Presiding.

Appeal from an amended judgment of the Supreme Court (Conway, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered November 13, 1987 in Albany County, upon a decision of the court, without a jury.

After 23 years of marriage and four children, three of whom are minors, a judgment and later amended judgment were awarded plaintiff after trial granting her a divorce on the ground of adultery, child support, spousal maintenance, equitable distribution of marital property and counsel fees. On this appeal, defendant challenges various financial aspects of the amended judgment.

First, defendant characterizes the permanent maintenance award as both excessive and inconsistent with Supreme Court's own assessment of the facts. In its amended findings of fact, the court specifically observed that "permanent maintenance payments [for plaintiff] are unwarranted after the youngest child turns twenty-one (21) years [of age] or is sooner emancipated". However, the amended judgment provides for maintenance of $550 per month until October 1989, and $500 per month thereafter for an indeterminate period to end at her remarriage or death.

We recognize that Supreme Court has broad discretion in fixing both the amount and duration of a spousal maintenance award (see, Domestic Relations Law § 236[B][6][a]; see also, Petrie v. Petrie, 124 A.D.2d 449, 451, 507 N.Y.S.2d 550, lv. dismissed 69 N.Y.2d 1038, --- N.Y.S.2d ----, 511 N.E.2d 89). Moreover, a permanent award of maintenance is statutorily authorized (Domestic Relations Law § 236[B][6][c] ). However, given the circumstances of this case, we find the award of permanent maintenance inappropriate. This is not an instance where the receiving spouse is incapable of becoming self-supporting (cf., Lisetza v. Lisetza, 135 A.D.2d 20, 23, 523 N.Y.S.2d 632; Jones v. Jones, 133 A.D.2d 217, 218, 519 N.Y.S.2d 22; Dunn v. Dunn, 124 A.D.2d 309, 508 N.Y.S.2d 94; Wilbur v. Wilbur, 116 A.D.2d 953, 954-955, 498 N.Y.S.2d 525; Pottala v. Pottala, 112 A.D.2d 553, 554, 490 N.Y.S.2d 936). While this is a marriage of long duration, plaintiff was 44 years old at the time of trial and had been gainfully employed, full time, since 1980. Moreover, the youngest child will reach the age of majority in 1994. Giving due regard to the relevant statutory factors (Domestic Relations Law § 236[B][6] ), we conclude that the record substantiates an award of maintenance, but not one of unlimited duration (see, Hermans v. Hermans, App.Div., 534 N.Y.S.2d 737; Culnan v. Culnan, App.Div., 530 N.Y.S.2d 688, 690; Lord v. Lord, 124 A.D.2d 930, 932, 508 N.Y.S.2d 676; Sorrentino v. Sorrentino, 116 A.D.2d 564, 566, 497 N.Y.S.2d 420). The present income differential between the parties is not so disparate as to require a contrary conclusion. Outside defendant's receipt of monthly payments from the sale of a business, which end in October 1989, Supreme Court calculated defendant's net income at $22,500 and plaintiff's income at $14,386. In our view, a temporal limitation of the maintenance award commensurate with the youngest child's reaching the age of majority, as specified in the court's findings of fact, is appropriate. The amended judgment should be modified accordingly.

Defendant further challenges Supreme Court's disposition regarding the marital residence. Supreme Court granted plaintiff exclusive use and possession of the marital residence until the youngest child reaches 21 years of age, at which time the home is to be sold and the proceeds equally distributed. Defendant's challenge is directed at the court's allocation of a credit to plaintiff against the sale proceeds for mortgage and real property tax payments, as well as any capital improvements. Defendant maintains that the credit is inappropriate since his maintenance payments effectively covered the housing costs. This thesis is unfounded. The maintenance award is designed to maintain plaintiff's standard of living, not simply to provide a housing subsidy. That plaintiff utilized her maintenance award to offset housing expenses does not alter the basic characteristic of these funds. In our view, Supreme Court could properly credit plaintiff for these expenditures. Nor do we find any impropriety in the court's award to plaintiff of $1,500 in counsel fees (see, Domestic Relations Law § 237[a]; Lisetza v. Lisetza, 135 A.D.2d 20, 24, 523 N.Y.S.2d 632, supra; Walsh v. Walsh, 92 A.D.2d 345, 347, 462 N.Y.S.2d 71).

Lastly, defendant maintains that Supreme Court's failure to identify the statutory factors relied on in awarding maintenance (Domestic Relations Law § 236[B][6][b] ) and distributing the marital property (Domestic Relations Law § 236[B][5][g] ) requires a new trial (see, Woertler v. Woertler, 110 A.D.2d 947, 948-949, 488 N.Y.S.2d 265). While the court indicated that it considered the statutory factors relevant to an equitable distribution of the marital property, it did not otherwise explain the reasons for its decision. A remittal is not necessary, however, for the record provides an adequate evidentiary basis for appellate review (see, Davis v. Davis, 128 A.D.2d 470, 474-475, 513 N.Y.S.2d 405; Melnik v. Melnik, 118 A.D.2d 902, 903, 499 N.Y.S.2d 470; Sementilli v. Sementilli, 102 A.D.2d 78, 86, 477 N.Y.S.2d 626). Here, the full transcript of the trial testimony and copies of both parties' financial statements are in the record. In addition, the record includes both the original and amended findings of fact and conclusions of law, together with Supreme Court's decision preceding said amendments, all of which demonstrate that the court did not simply adopt plaintiff's proposed findings (see, Capasso v. Capasso, 119 A.D.2d 268, 275, 506 N.Y.S.2d 686). The factual issues were sufficiently and clearly posited as to identify the basis for the court's decision (see, Melnik v. Melnik, supra, 118 A.D.2d at 903, 499 N.Y.S.2d 470). It can readily be inferred from the conclusions reached that the court reviewed, analyzed and weighed the evidence presented (see, Davis v. Davis, supra, 128 A.D.2d at 475, 513 N.Y.S.2d 405; Melnik v. Melnik, supra, 118 A.D.2d at 903, 506 N.Y.S.2d 686).

Amended judgment modified, on the facts, without costs, by limiting the duration of the maintenance award until such time as the parties' youngest child reaches the age of majority, and, as so modified, affirmed.

YESAWICH and HARVEY, JJ., concur.

MIKOLL and LEVINE, JJ., concur in part and dissent in part in a memorandum by LEVINE, J.

LEVINE, Justice (concurring in part and dissenting in part).

We respectfully disagree with so much of the majority's decision that modifies the judgment by terminating the award of maintenance...