Gorman v. Gorman

• Decision Date: 24 October 2018
• Docket Number: Index No. 7849/11,2017–02156
• Parties: John GORMAN, respondent-appellant, v. Karen GORMAN, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1067
86 N.Y.S.3d 554

John GORMAN, respondent-appellant,
v.
Karen GORMAN, appellant-respondent.

2017–02156
Index No. 7849/11

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

Argued—May 15, 2018
October 24, 2018

86 N.Y.S.3d 557

Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (William J. Larkin and Theresa Cayton of counsel), for appellant-respondent.

H. Scott Ziemelis, Middletown, NY, for respondent-appellant.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of the Supreme Court, Orange County (Maria Vazquez–Doles, J.), dated December 14, 2016, and the plaintiff cross-appeals from stated portions of the same judgment. The judgment, insofar as appealed from, upon a decision of the same court dated April 5, 2016, made after a nonjury trial, inter alia, awarded the defendant maintenance in the sum of only $4,500 per month for eight years, commencing January 1, 2012, equitably distributed marital property, and imputed income to the defendant to calculate pendente lite support arrears. The judgment, insofar as cross-appealed from, inter alia, failed to award the plaintiff an equitable share of certain bank accounts and awarded the defendant pendente lite support arrears, maintenance, and $20,000 in attorney's fees.

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof requiring the plaintiff to pay the defendant maintenance in the sum of $4,500 per month for eight years, commencing January 1, 2012, and substituting therefor a provision requiring the plaintiff to pay the defendant maintenance in the sum of $2,750 per month until the earliest of the defendant's remarriage, her attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party, (2) by deleting the provision thereof terminating the plaintiff's maintenance obligation as of the earliest to occur of January 30, 2010, the plaintiff's remarriage, or the death of either party, and substituting therefor a provision terminating the plaintiff's maintenance obligation upon the earliest to occur of the defendant's remarriage, the defendant's attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party, (3) by deleting the provision thereof requiring the plaintiff to pay to the defendant the sum of $22,980.71 for child support arrears, payable in the sum of $200 per month, (4) by deleting the provision thereof requiring the plaintiff to pay the defendant temporary maintenance arrears in the sum of $104,706.08, (5) by adding a provision thereto requiring the plaintiff to maintain a life insurance policy in the sum of $500,000, naming the defendant as irrevocable beneficiary for as long as the plaintiff is obligated to pay maintenance to the defendant, (6) by adding a provision thereto directing the plaintiff to provide health insurance for the defendant, effective

86 N.Y.S.3d 558

February 7, 2012, until she becomes eligible for coverage through employment or through Medicare, whichever shall first occur, (7) by adding a provision thereto providing that the proceeds of the parties' joint checking account, with a commencement date value of $95,981.18, and the parties' joint savings account, with a commencement date value of $44,458.50, be equally divided between the parties, and (8) by adding a provision thereto providing the defendant with a $1,600 credit toward her distributive award; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for the calculation of the amounts, if any, due to the defendant from the plaintiff for child support and temporary maintenance arrears in accordance herewith, and for a determination as to what, if any, amounts are due to the defendant from the plaintiff based on our direction that the plaintiff must provide health insurance for the defendant, effective February 7, 2012.

The parties were married on May 16, 1987. During the marriage, the defendant, after having worked as a legal secretary for a period of time, quit the workforce to become a homemaker and to care for the parties' two children, who now are in their mid-to-late twenties, while the plaintiff worked in various capacities connected with the United States military, including defense contracting work that took him overseas to Iraq.

This action for a divorce and ancillary relief was commenced on August 2, 2011, after the plaintiff vacated the marital residence. Thereafter, the defendant moved for and was awarded pendente lite maintenance and child support, and she has had exclusive occupancy of the marital residence during the pendency of this action. While the Supreme Court awarded the defendant unallocated temporary maintenance and child support in the sum of $6,300 per month in May 2013, the plaintiff unilaterally decided to pay the defendant, as of February 2014, the sum of only $2,500 per month. A nonjury trial was held on the ancillary economic issues attendant to the divorce. By judgment of divorce dated December 14, 2016, which incorporated by reference the court's decision after trial dated April 5, 2016, the court, inter alia, determined issues of maintenance, equitable distribution, pendente lite support arrears, and the defendant's application for attorney's fees. The defendant appeals and the plaintiff cross-appeals from stated portions of the judgment.

The defendant contends that her maintenance award of $4,500 per month for eight years, commencing January 1, 2012, is inadequate both in duration and amount, arguing, inter alia, that the Supreme Court improperly found, in setting the award, that she was capable of earning $26,000 per year and directed that maintenance shall terminate upon the plaintiff's remarriage. The plaintiff contends that the award is excessive, arguing, inter alia, that the court improperly imputed income to him.

"The amount and 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" ( Culen v. Culen, 157 A.D.3d 926, 928, 69 N.Y.S.3d 702 ; see Carroll v. Carroll, 125 A.D.3d 710, 711, 3 N.Y.S.3d 397 ). In cases, like this one, commenced prior to amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered include "the...