Fisher v. Fisher

• Decision Date: 13 November 2014
• Docket Number: 518077
• Citation: Fisher v. Fisher, 2014 NY Slip Op 7713, 996 N.Y.S.2d 759, 122 A.D.3d 1032 (N.Y. App. Div. 2014)
• Parties: John C. FISHER, Respondent, v. Cathy Ann FISHER, Appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 1032

996 N.Y.S.2d 759

2014 N.Y. Slip Op. 07713

John C. FISHER, Respondent

v.Cathy Ann FISHER, Appellant.

518077

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

Nov. 13, 2014.

Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for appellant.

Joseph A. Ermeti, Sidney, for respondent.

Before: LAHTINEN, J.P., ROSE, EGAN JR., LYNCH and CLARK, JJ.

Opinion

EGAN JR., J.

Appeal from a judgment of the Supreme Court (Burns, J.), entered January 25, 2013 in Otsego County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1966 and have two adult children. The husband commenced this action for divorce in 2011, at which time the parties' primary assets consisted of three parcels of real property located within walking distance of one another in the hamlet of East Worcester, Otsego County; one parcel was improved by the parties' marital residence, one parcel was improved by the husband's automotive repair garage and one parcel was vacant. In addition to the enumerated parcels, the parties also owned a number of motor vehicles, including a 1940 Dodge Street Rod.

Following a nonjury trial, at which the parties and various appraisers appeared and testified, Supreme Court awarded the marital residence (valued at approximately $87,000) and its contents to the wife and awarded the repair shop (valued at approximately $52,000) and its contents to the husband. To account for this disparity, Supreme Court awarded the husband several of the parties' motor vehicles, while the wife retained her personal vehicle and certain shares of stock. Each party also retained any bank accounts held in his or her own name, and the cash value of the life insurance policies at issue—as well as the husband's pension—were to be divided equally.¹ Supreme Court also ordered the husband to pay maintenance to the wife in the amount of $500 per month for three years. This appeal by the wife ensued.

The wife initially contends that she is entitled to a distributive award in the amount of $10,000, representing one half of the alleged disparity between the respective bank accounts that she and the husband held in their own names. Although it is apparent from a review of the record that Supreme Court endeavored to divide the parties' marital assets as evenly as possible, the fact remains that equitable distribution does not require equal distribution in all instances (see Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] ) and, in light of the remaining assets received by the wife, we discern no need for the requested distributive award.

As for the wife's challenge to the duration of the maintenance awarded to her, it is well settled that “the amount and duration of [the] maintenance awarded is a matter committed to the discretion of the trial court, after due consideration of the statutory factors and the parties' standard of living during the marriage” (Halse v. Halse,

93 A.D.3d 1003, 1005, 940 N.Y.S.2d 353 [2012] ; see Domestic Relations Law § 236[B][6][a] ; Cornish v. Eraca–Cornish, 107 A.D.3d 1322, 1324, 968 N.Y.S.2d 659 [2013] ).² At the time of trial, the parties—each of whom were in their early 60s and in good health—had been married for more than 40 years. Although the husband had been the primary wage earner during the course of the marriage, both parties were employed at the time of trial; the wife, who performed gardening work for a local campground and worked as a caretaker for an elderly woman, earned approximately $27,000 per year in salary and Social Security benefits, and the husband, who was a bus driver for a local school district, earned approximately $40,000 per year. The record further reflects that the parties enjoyed a modest standard of living during their marriage and, as noted previously, Supreme Court otherwise allocated the parties' marital assets in an equitable—and nearly equal—fashion. That said, while Supreme Court awarded the wife one half of the husband's pension, the husband has not yet retired, and we deem it appropriate—in order to avoid a potential gap in the wife's receipt of financial support—to modify the duration of the award by providing that the wife shall receive maintenance in the amount of $500 per month until such time as the husband retires and the wife begins receiving her portion of his pension benefits (cf. Settle v. McCoy, 108 A.D.3d 810, 812, 968 N.Y.S.2d 697 [2013] ).

With respect to the allocation of the husband's pension rights, a pension that qualifies as marital property may be distributed either in a lump sum or future periodic payments (see Shapiro v. Shapiro, 91 A.D.3d 1094, 1095, 937 N.Y.S.2d 368 [2012] ). To that end, where the titled spouse lacks the present ability to pay for the equitable distribution of his or her pension, a deferred distribution is entirely appropriate (see Chambers v. Chambers, 259 A.D.2d 807, 808, 686 N.Y.S.2d 199 [1999] ). Here, the wife does not quarrel with Supreme Court's decision to award her 50% of the husband's pension but, rather, faults the court for failing to direct that the husband select a particular payout option. Inasmuch as no request for such a directive was made by the wife—either during the course of the trial or in her posttrial submissions—this issue is not properly before us (see Nalbandian v. Nalbandian, 135 A.D.2d 621, 623, 522 N.Y.S.2d 199 [1987], lv. denied 71 N.Y.2d 802, 527 N.Y.S.2d 768, 522 N.E.2d 1066 [1988] ). The wife's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

LYNCH, J. (concurring in part and dissenting in part).

I join in the majority opinion, except with respect to Supreme Court's failure to address the selection of a particular payment option for the pension of plaintiff (hereinafter the husband). A review of the record shows that...