Harold v. Harold
| Citation | 21 N.Y.S.3d 508,133 A.D.3d 1376 |
| Parties | Marcella HAROLD, Plaintiff–Appellant, v. Sylvester HAROLD, Defendant–Respondent. |
| Decision Date | 20 November 2015 |
| Court | New York Supreme Court — Appellate Division |
133 A.D.3d 1376
21 N.Y.S.3d 508
Marcella HAROLD, Plaintiff–Appellant,
v.
Sylvester HAROLD, Defendant–Respondent.
Supreme Court, Appellate Division, Fourth Department, New York.
Nov. 20, 2015.
Kustell Law Group, LLP, Buffalo (Carl B. Kustell of Counsel), for Plaintiff–Appellant.
John P. Pieri, Buffalo, for Defendant–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:
By amended order to show cause and supporting affidavit, plaintiff wife moved for, inter alia, equitable distribution of severance benefits received by defendant husband after the entry of a judgment of divorce, and defendant cross-moved to modify the maintenance provisions of the judgment of divorce. Insofar as relevant to this appeal, Supreme Court denied that part of plaintiff's motion concerning severance benefits, granted defendant's cross motion, and ordered a hearing on the issue of maintenance.
Contrary to plaintiff's contention, the court did not abuse its discretion in denying that part of her motion seeking equitable distribution of defendant's severance benefits. The record establishes that, in March 2013, and approximately one year after the entry of the judgment of divorce, defendant lost his job and received a severance payment from his employer. Defendant subsequently used the entire severance payment to pay his own living expenses and to pay maintenance to plaintiff through December 2013. We conclude that the severance payments are defendant's separate property inasmuch as his "right to receive those payments did not exist either during the marriage or prior to the commencement of this action, nor did the severance payments constitute compensation for past services" (Bink v. Bink, 55 A.D.3d 1244, 1245, 865 N.Y.S.2d 417 ). In any event, even assuming, arguendo, that the severance payment was marital property, the court's determination was not an abuse of discretion inasmuch as plaintiff had already benefitted from the severance...
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