Gillman v. Gillman
| Decision Date | 04 May 2016 |
| Docket Number | 2014-04108, Index No. 194/12. |
| Citation | 31 N.Y.S.3d 164,2016 N.Y. Slip Op. 03470,139 A.D.3d 667 |
| Parties | Deborah GILLMAN, appellant, v. Lance E. GILLMAN, respondent. |
| Court | New York Supreme Court — Appellate Division |
The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah and Patrick M. Kerr of counsel), for appellant.
Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), for respondent.
L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal from stated portions of a judgment of the Supreme Court, Suffolk County (Carol MacKenzie, J.), entered March 13, 2014. The judgment, insofar as appealed from, upon a decision of that court dated September 12, 2013, made after a nonjury trial, inter alia, (a) awarded the plaintiff the sum of only $836.75 per week in child support, (b) awarded the plaintiff maintenance only until she reaches the age of 60, (c) directed that the parties equally share the repayment of the $28,000 balance of a loan, (d) failed to direct the defendant to maintain a life insurance policy to secure the plaintiff's interest in maintenance and child support payments, (e) failed to direct the defendant to pay any portion of the children's college tuition, (f) failed to direct the defendant to pay the mortgage arrears on the marital residence, and (g) failed to direct the defendant to pay one-half of the value of his life insurance policies and Prudential and Qualcomm stocks to the plaintiff.
ORDERED that pending a new determination by the Supreme Court of the child support payments to be made by the defendant, the child support payment to be paid by the defendant, as set forth in the judgment appealed from, shall remain in effect.
The plaintiff and the defendant were married in 1986, and have three children. At the time of the trial, none of the children was emancipated, although the parties' twins were 19 years old. Throughout the marriage, the defendant (born in 1959) was steadily employed, while the plaintiff (born in 1960) was the primary caregiver for the children and a homemaker. In 2005, the plaintiff started a home-decorating business out of the marital residence that generated an annual income of a few thousand dollars. After approximately 26 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief. The parties agreed that the plaintiff would have sole custody of the parties' youngest child, who was 14 years old. A nonjury trial was conducted to resolve the issues of maintenance, child support, and equitable distribution of certain assets. Following the trial, the Supreme Court, inter alia, (1) awarded the plaintiff the sum of $836.75 per week in child support, (2) awarded the plaintiff maintenance in the sum of $4,000 per month until she reaches the age of 60, and (3) directed that the parties equally share the repayment of the $28,000 balance of a loan. The plaintiff appeals from these portions of the judgment, as well as from the court's failure to direct the defendant to pay any portion of the children's college tuition, to bring the mortgage payments on the marital residence current, to maintain a life insurance policy to secure her interest in the maintenance and child support payments, and to pay one-half of the cash-surrender value of his life insurance policies and Prudential and Qualcomm stocks.
Initially, in awarding the plaintiff $836.75 per week in child support, the Supreme Court failed to sufficiently articulate its reasons for capping the combined parental income at $176,000. “The Child Support Standards Act (see Domestic Relations Law § 240[1–b]
) sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment” (McCoy v. McCoy, 107 A.D.3d 857, 858, 967 N.Y.S.2d 137 ; see
Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765 ), here, $136,000 (see Social Services Law § 111–i[2][b] ). For income exceeding $136,000, the court has broad discretion to apply the statutory child support percentage, or to apply the factors set forth in Domestic Relations Law § 240(1–b)(f)
, or to apply both (see Matter of
Cassano v. Cassano, 85 N.Y.2d 649, 654, 628 N.Y.S.2d 10, 651 N.E.2d 878 ). The court must “ ‘articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage’ ” (McCoy v. McCoy, 107 A.D.3d at 858, 967 N.Y.S.2d 137, quoting Wagner v. Dunetz, 299 A.D.2d 347, 350–351, 749 N.Y.S.2d 545 [internal quotation marks omitted]. Here, while the Supreme Court stated that it considered some of the relevant factors, including the children's lifestyle during the marriage, the court failed to adequately articulate how these factors applied to the particular circumstances of this case and how it decided that $176,000, an amount less than the defendant's 2013 base salary of $181,000, was an appropriate limit on which to base his child support obligation (see McCoy v. McCoy, 107 A.D.3d at 858, 967 N.Y.S.2d 137
). For instance, the record does not reflect that the court considered or gave sufficient weight to, among other things, the fact that the twins were not planning to return to college, were financially dependent upon their parents, and would be living at home full-time with the plaintiff. Therefore, it is appropriate to remit the matter to the Supreme Court to enable it to further articulate how the factors set forth in Domestic Relations Law § 240(1–b)(f) support its determination capping the combined parental income for the purpose of calculating child support (see
Schack v. Schack, 128 A.D.3d 941, 942–943, 13 N.Y.S.3d 89 ; Hymowitz v. Hymowitz, 119 A.D.3d 736, 742, 991 N.Y.S.2d 57 ; McCoy v. McCoy, 107 A.D.3d at 858, 967 N.Y.S.2d 137 ).
Next, insofar as the plaintiff challenges the duration of the maintenance award, the duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts (see Lamparillo v. Lamparillo, 130 A.D.3d 580, 581, 12 N.Y.S.3d 296
; Hainsworth v. Hainsworth, 118 A.D.3d 747, 748, 987 N.Y.S.2d 215 ; Marley v. Marley, 106 A.D.3d 961, 962, 965 N.Y.S.2d 375 ; Giokas v. Giokas, 73 A.D.3d 688, 688, 900 N.Y.S.2d 370 ). “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...
To continue reading
Request your trial
-
Maddaloni v. Maddaloni
...earning capacity of the party seeking maintenance” (Gordon v. Gordon, 113 A.D.3d 654, 654–655, 979 N.Y.S.2d 121 ; see Gillman v. Gillman, 139 A.D.3d 667, 31 N.Y.S.3d 164 ). “In general, an award of maintenance should be of a duration sufficient to permit the recipient to achieve economic in......
-
D.D. v. A.D.
...§ 236(B)(8)(a) ; See also Hainsworth v. Hainsworth, 118 A.D.3d 747, 987 N.Y.S.2d 215 (2d Dept.2014) ; See also Gillman v. Gillman, 139 A.D.3d 667, 31 N.Y.S.3d 164 (2d Dept.2016). Accordingly, Husband is hereby ordered to maintain a life insurance policy in the amount of $220,000 naming both......
-
Pandis v. Lapas
...89 N.Y.S.3d 239, quoting Matter of Cassano v. Cassano , 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; see Gillman v. Gillman , 139 A.D.3d 667, 669, 31 N.Y.S.3d 164 ). "The test generally applied is whether the child is receiving enough to meet his or her ‘actual needs and the amount......
-
Sufia v. Khalique
...Kamm v. Kamm, 182 A.D.3d at 591–592, 120 N.Y.S.3d 815 ; Klein v. Klein, 178 A.D.3d 802, 804, 116 N.Y.S.3d 92 ; Gillman v. Gillman, 139 A.D.3d 667, 670–671, 31 N.Y.S.3d 164 ). However, the court should have included a provision that the award of maintenance shall terminate upon the death of ......