Harris v. Schreibman

• Decision Date: 02 December 2021
• Docket Number: 529503
• Citation: 200 A.D.3d 1117,160 N.Y.S.3d 349
• Parties: Shannon E. HARRIS, Also Known as Shannon E. Schreibman, Respondent—Appellant, v. Julian D. SCHREIBMAN, Appellant—Respondent.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1117

160 N.Y.S.3d 349

Shannon E. HARRIS, Also Known as Shannon E. Schreibman, Respondent—Appellant,

v.Julian D. SCHREIBMAN, Appellant—Respondent.

529503

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

Calendar Date: October 21, 2021

Decided and Entered: December 2, 2021

Law Office of Cappy Weiner, Kingston (Cappy Weiner of counsel), for appellant-respondent.

Van DeWater & Van DeWater, LLP, Poughkeepsie (Danielle E. Strauch of counsel), for respondent-appellant.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

(1) Cross appeals from an amended judgment of the Supreme Court (Lambert, J.), entered May 15, 2019 in Ulster County, ordering, among other things, equitable distribution of the parties’ marital property, upon decisions of the court, (2) appeals from two orders of said court, entered September 19, 2019 and December 18, 2019 in Ulster County, which, among other things, vacated part of the parties’ oral stipulation and partially denied defendant's motion to reargue and renew, and (3) appeal from an amended order of said court, entered February 4, 2020, which awarded plaintiff counsel fees.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in September 2004 and have three children together – one born in 2008 and twins born in 2010. By way of relevant background, the parties’ marital relationship informally ended in 2012, but they elected to defer formal divorce proceedings and continued to share a residence and co-parent their children. Notably, the husband and the wife each owned a one-third share of the marital residence, and the wife's mother owned the remaining one-third interest in it. The wife's mother also provided the parties with $50,000 to renovate an unfinished space on the property into a home office and rental unit. In 2016, the parties reached a financial arrangement in which they would share the cost of the mortgage proportionate to their incomes, the wife would pay for health insurance and a live-in au pair and would receive the income from the rental unit, and the husband would pay the remaining expenses. In late 2016, the wife lost her job, received a severance package and began focusing on her rental operation through Airbnb; she also ran for election as Esopus Town Supervisor. At the same time, the husband, who was a partner at a New York City law firm, ran for election for the position of Justice of the Supreme Court. Both parties were elected in November 2017, and both of their incomes were reduced as a result.

The wife commenced this action for divorce and equitable distribution of marital property in June 2017. The husband answered the complaint and counterclaimed for the same relief. Prior to trial, the parties agreed on joint legal custody for their three children with each parent getting physical custody 50% of the time. The parties also entered a pretrial oral stipulation in which, among other things, the husband's one-third interest in the marital residence was transferred to the wife and the husband waived any interest in the wife's Airbnb business, and the husband's expected distribution from his capital account with his former law firm, the parties’ retirement accounts and their credit card debts were equitably distributed. Trial was then held on the remaining issues, including child support, maintenance and the repayment of $50,000 to the wife's mother. After trial, the husband moved to vacate the portion of the oral pretrial stipulation setting forth the exact figure of his capital account and the exact figure of the wife's credit of such, and to reopen proof as to the value of that account. The wife opposed that motion. Supreme Court granted the husband's motion and held a hearing regarding the value and distribution of the husband's capital account.

By amended judgment entered May 15, 2019, Supreme Court, among other things, granted the wife spousal maintenance and child support, and ordered the husband to maintain health insurance for the children, pay a portion of the uninsured medical expenses and pay a portion of the cost of an au pair. After determining that the $50,000 from the wife's mother was a loan, not a gift, the wife was ordered to pay the entire $50,000, but she was to receive a $25,000 distributive credit from the husband. The court denied the wife's request for prejudgment counsel fees.

The husband subsequently moved to renew and reargue with respect to various provisions of the May 15, 2019 amended judgment, including those requiring him to pay spousal maintenance, child support and health insurance and claiming that Supreme Court overlooked and did not address removal of the husband's name from the note and mortgage encumbering the marital residence. The wife cross-moved for counsel fees in conjunction with the postjudgment motion. By order entered September 19, 2019, Supreme Court vacated the specific dollar figure set forth in the parties’ pretrial stipulation with respect to the husband's capital account, adjusted that figure to comport with the testimony heard at the hearing and ordered the husband to pay the wife half of that adopted amount. Three months later, in a December 18, 2019 order, the court partially granted the husband's motion to reargue and renew by recalculating the amount of maintenance that the husband owed the wife and, as a result, adjusted the amount of child support owed to reflect those changes. The court also ordered that a hearing be held on the wife's cross motion for postjudgment counsel fees, which was subsequently held. By order entered February 4, 2020, the court awarded the wife $5,000 in counsel fees. The husband and the wife cross-appeal from the May 15, 2019 amended judgment of divorce, and the husband also appeals from the September 19, 2019, December 18, 2019 and February 4, 2020 orders.

The husband raises several arguments regarding Supreme Court's award of maintenance to the wife. " ‘[I]n any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the’ guidelines set forth in the statute" ( Hughes v. Hughes, 198 A.D.3d 1170, 1173, 156 N.Y.S.3d 444 [2021], quoting Domestic Relations Law § 236[B][6][a] ). "The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with [the statutory formula], unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the" specifically enumerated factors set forth in the statute ( Domestic Relations Law § 236[B][6][e][1] ).

The husband first argues that the wife is not a candidate for maintenance because the wife has the education, skills and work history to be self-sufficient. Supreme Court awarded the wife, pursuant to the statutory guidelines, maintenance in the amount of $1,963.92 monthly, or $23,567 annually, for a duration of 3 years and 10 months.¹ The court explicitly stated that it considered that factors in Domestic Relations Law § 236(B)(6)(e) and declined to deviate from the guidelines. Although the wife is earning substantially less money than she did in her previous employment, the record reflects that she lost her job through no fault of her own and was reluctant to take a position that would require her to commute into New York City or travel a lot, taking her away from the children. The husband testified that this is the same reason that he ran for the judgeship to which he was elected, a position that pays less than half of what he was previously earning while working as a partner in a New York City law firm. Certainly, it seems unjust and inappropriate to penalize the wife for making the decision to earn significantly less money for the same reason as the husband. Additionally, although the wife is arguably self-sufficient, the court properly considered the standard of living that the parties established during the marriage in determining that the maintenance award was not unjust or inappropriate (see generally St. Denny v. St. Denny, 185 A.D.3d 1246, 1247, 127 N.Y.S.3d 638 [2020] ; Pfister v. Pfister, 146 A.D.3d 1135, 1137, 47 N.Y.S.3d 140 [2017] ). As such, we do not discern an abuse of discretion in Supreme Court awarding the wife maintenance in accordance with the statutory guidelines.

Nor do we discern any abuse of discretion in Supreme Court ordering maintenance for 3 years and 10 months, which is the maximum length of time under the advisory schedule (see Domestic Relations Law § 236[B][6][f][1] ).² Contrary to the husband's arguments on appeal, the record reflects that, in its findings of fact and conclusions of law, the court noted, among other things, the ages of the parties, the length of the marriage, information regarding the children, the parties’ educational levels and past and current careers and incomes. In awarding maintenance and setting the duration, the court expressly stated that it considered the factors in Domestic Relations Law § 236(B)(6)(e) and detailed the factors it found most compelling. Thus, because the court provided a "reasoned analysis of the factors it ultimately relie[d] upon in awarding maintenance" and setting its duration, we decline to disturb the maintenance award ( Robinson v. Robinson, 133 A.D.3d 1185, 1186, 21 N.Y.S.3d 392 [2015] [internal quotation marks and citation omitted]; see Domestic Relations Law § 236[B][6][f][2] ; Orioli v. Orioli, 129 A.D.3d 1154, 1155, 10 N.Y.S.3d 713 [2015] ).

The husband next contends that Supreme Court erred in setting the wife's income as $59,000. "[A] court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed. The trial court is afforded considerable discretion in determining whether to impute income to a party, and...