Hendricks v. Hendricks

• Decision Date: 23 December 2004
• Docket Number: 95488.
• Citation: 788 N.Y.S.2d 190,2004 NY Slip Op 09559,13 A.D.3d 928
• Parties: ADELL T. HENDRICKS, Appellant-Respondent v. WILLIAM C. HENDRICKS, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 928

788 N.Y.S.2d 190

2004 NY Slip Op 09559

ADELL T. HENDRICKS, Appellant-Respondent v. WILLIAM C. HENDRICKS, Respondent-Appellant.

95488.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 23, 2004.

(1) Cross appeals from a judgment of the Supreme

Court (McNamara, J.), entered September 12, 2003 in Albany County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court, and (2) appeal from an order of said court, entered November 5, 2003 in Albany County, which, inter alia, denied plaintiff's application for counsel fees.

ROSE, J.

The parties in this matrimonial action were married in 1966 and have two emancipated children. After trial in 2002, Supreme Court, among other things, equally distributed the marital property and ordered defendant to pay maintenance in the amount of $1,275 per month until his retirement. In a subsequent order, Supreme Court denied both parties' applications for counsel fees. Plaintiff appeals both the judgment and the order, contending that Supreme Court erred in determining the amount, duration and effective date of the maintenance award, and in failing to grant her counsel fees. Defendant cross-appeals from only the judgment, challenging the amount of maintenance as well as Supreme Court's failure to award him a portion of plaintiff's retirement benefit, distribution of the proceeds from the marital residence and treatment of a portion of the marital residence proceeds held in escrow.

Initially, we find no merit in either plaintiff's or defendant's contentions concerning the amount and duration of maintenance. At the time of trial, defendant was 59 years old and earned $73,350 consisting of a base salary of $56,305.92 and overtime pay. Supreme Court found that his ability to earn overtime pay is decreasing, and he expects to retire and draw his pension when he reaches 62 years of age. Plaintiff was 58 years old and, although she had worked during much of the marriage, she has been unable to work since 1995 due to poor health. She also receives $450 per month from Social Security. Supreme Court considered these factors, as well as the legitimate living expenses of the parties and the evidence of their predivorce standard of living, and awarded plaintiff approximately 40% of defendant's available income, a percentage that will necessarily increase as his overtime pay continues to decline. Accordingly, we find no abuse of Supreme Court's discretion in determining the amount of the award (see Lincourt v Lincourt, 4 AD3d 666, 667 [2004]; Smith v Smith, 1 AD3d 870, 872 [2003]; Majekodunmi v Majekodunmi, 309 AD2d 1024, 1025 [2003]).

As to the duration of maintenance, Supreme Court appropriately accommodated the parties' particular circumstances, including defendant's decreasing earnings and planned retirement within three years, by providing for the termination of his support obligation upon retirement since plaintiff will then begin to receive one half of his pension benefits and 401K plan (see McAteer v McAteer, 294 AD2d 783, 785 [2002]; Messemer v Messemer, 272 AD2d 672, 672 [2000]). As to the effective date of the maintenance award, we note that plaintiff had exclusive possession of the marital residence until it was sold during the pendency of the action, an event that increased her housing expenses and decreased those of defendant. Supreme Court appropriately took those expenses into account, along with the temporary award of maintenance paid during the action, and adjusted its retroactive award of maintenance accordingly (see Spenello v Spenello, 274 AD2d 822, 823-824 [2000]; Markopoulos v Markopoulos, 274 AD2d 457, 459 [2000]).

Turning to plaintiff's argument that Supreme Court erred in denying her counsel fees, we conclude that the court properly considered the financial circumstances of both parties as well as plaintiff's failure to establish the amount of a substantial inheritance that remained available to her at the time of trial (see Domestic Relations Law § 237 [a]...