Ferraro v. Ferraro

• Decision Date: 19 January 1999
• Court: New York Supreme Court — Appellate Division
• Parties: ALAN FERRARO, Appellant-Respondent,<BR>v.<BR>THERESA FERRARO, Respondent-Appellant.<BR>LAW FIRM OF JOEL R. BRANDES, P. C., Nonparty Respondent-Appellant.

257 A.D.2d 596

684 N.Y.S.2d 274

ALAN FERRARO, Appellant-Respondent,

v.THERESA FERRARO, Respondent-Appellant.

LAW FIRM OF JOEL R. BRANDES, P. C., Nonparty Respondent-Appellant.

Decided January 19, 1999.

Bracken, J. P., Miller, Ritter and Thompson, JJ., concur.

Ordered that the judgment is modified, on the facts, by deleting from the second decretal paragraph thereof the year "1987" and substituting therefor the year "1988"; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Domestic Relations Law § 236 (B) (5) (d) (12) provides that in determining the equitable distribution of marital property, the court may consider "any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration". Here, the evidence adduced at trial supported the court's conclusion that the transfer of the plaintiff's interest in A.J. Land Development Corporation to a trust for the parties' son, some two months before the commencement of this action, was made in contemplation of the matrimonial action and in order to remove the asset from his holdings. Although both parties challenge the court's valuation of this asset, we decline to disturb that determination on appeal. Similarly, the evidence before the trial court was sufficient to support its conclusion that the pension plan distribution made to the plaintiff's mother constituted a wasteful dissipation of a marital asset within the meaning of Domestic Relations Law § 236 (B) (5) (d) (11).

The amount and duration of maintenance to be awarded in a divorce action is a matter committed to the sound discretion of the trial court (see, O'Sullivan v O'Sullivan, 247 AD2d 597; Matter of Kornfeld v Kornfeld, 224 AD2d 620). Here, the court properly concluded that the defendant, who was 40 years old at the time of trial and whose last employment outside the home was eight years earlier as a promotional model at Neiman Marcus, was in need of rehabilitative maintenance to become self-supporting (see, Sperling v Sperling, 165 AD2d 338). Under the circumstances of this case, the amount and duration of maintenance awarded to the defendant were neither excessive nor inadequate.

The award of reasonable counsel fees is a matter committed to the sound discretion of the trial court and is controlled by the equities of the case and the financial circumstances of the parties (see, Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879; Lee v Oi Wa Chan, 245 AD2d 270). Here, considering the...