Johnston v. Johnston, 524792

• Decision Date: 21 December 2017
• Docket Number: 524792
• Citation: 68 N.Y.S.3d 178,156 A.D.3d 1181
• Parties: Naomi R. JOHNSTON, Appellant, v. Matthew W. JOHNSTON, Respondent.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1181

68 N.Y.S.3d 178

Naomi R. JOHNSTON, Appellant,

v.Matthew W. JOHNSTON, Respondent.

524792

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

Calendar Date: November 21, 2017

Decided and Entered: December 21, 2017

Naomi R. Johnston, Jefferson, appellant pro se.

Cynthia Feathers, Glens Falls, for respondent.

Before: Peters, P.J., Garry, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the Supreme Court (Ferreira, J.), entered January 17, 2017 in Schoharie County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in September 1989 and have two children (born in 1991 and 1995). In April 2014, the wife commenced this action seeking, among other things, a judgment of separation from the husband. The husband answered and asserted a counterclaim for divorce on the ground of irretrievable breakdown or abandonment, and, in reply, the wife asserted a counterclaim for divorce on the ground of adultery or constructive abandonment. In December 2014, upon the wife's motion and the parties' consent, Supreme Court (Connolly, J.) directed the husband to pay the wife $4,000 a month in temporary maintenance, $1,000 a month in temporary child support and $4,000 in interim counsel fees. Sometime thereafter, the wife's attorney was discharged, and Supreme Court (Ferreira, J.) granted the wife $4,000 in prospective counsel fees to retain a new attorney. The wife hired new counsel, and the matter proceeded to a three-day nonjury trial on the issues of grounds, equitable distribution, maintenance and child support.¹ Following trial, Supreme Court granted the husband a judgment of divorce against the wife on the ground that their marriage had broken down irretrievably for a period of at least six months, distributed the parties' marital property and directed the husband to pay the wife $5,000 in counsel fees, as well as $3,000 per month in maintenance until such time as she began receiving his retirement benefits, the death of either party, the wife's remarriage or a subsequent modification by the court.² The wife appeals.

With respect to the grounds for divorce, the husband's sworn testimony that his marriage to the wife had irretrievably broken down for a period of at least six months was sufficient to establish, as a matter of law, his cause of action for divorce pursuant to Domestic Relations Law § 170(7) (see Matter of Motta v. Motta, 145 A.D.3d 560, 561, 43 N.Y.S.3d 336 [2016]; Gonzalez v. Garcia, 134 A.D.3d 989, 990, 22 N.Y.S.3d 513 [2015] ; Hoffer–Adou v. Adou, 121 A.D.3d 618, 619, 997 N.Y.S.2d 7 [2014] ). Additionally, as found by Supreme Court and established by the record, the husband complied with the requirements of Domestic Relations Law § 253(3). Further, although the wife challenges the constitutionality of Domestic Relations Law § 170(7) on various grounds, she failed to raise these arguments before Supreme Court and, thus, they are unpreserved for our review (see Carvalho v. Carvalho, 140 A.D.3d 1544, 1549 n. 3, 34 N.Y.S.3d 535 [2016] ; Severing v. Severing, 97 A.D.3d 956, 957, 948 N.Y.S.2d 724 [2012] ). Finally, having determined that the husband established irretrievable breakdown pursuant to Domestic Relations Law § 170(7), Supreme Court was under no obligation to grant the wife a judgment of divorce on the ground of adultery or constructive abandonment (see Hoffer–Adou v. Adou, 121 A.D.3d at 619, 997 N.Y.S.2d 7 ). As such, it is of no consequence that Supreme Court did not draw a negative inference against the husband for invoking his Fifth Amendment privilege against self-incrimination when asked if he had engaged in an adulterous relationship (see generally El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 37–38, 41 N.E.3d 340 [2015], affg 114 A.D.3d 4, 19–20, 978 N.Y.S.2d 239 [2013] ; Nolan v. Nolan, 107 A.D.2d 190, 192, 486 N.Y.S.2d 415 [1985] ).

The wife also takes issue with Supreme Court's distribution of the parties' marital property and debt. Initially, the wife argues that Supreme Court's distributive award was flawed because the husband's financial disclosures were inadequate or incomplete. Prior to trial, the wife moved for, among other things, an order compelling the husband to comply with her discovery demands and imposing sanctions (see CPLR 3124, 3126 ). The husband responded to the wife's discovery demands during the pendency of her motion, and the wife subsequently asserted that such responses were incomplete. However, Supreme Court determined that the wife failed to identify any particular document or specific information that was included in her demands but not provided by the husband, and indicated that the wife could serve supplemental discovery demands if she found that there was additional, relevant information that had not been provided. The wife ultimately did not serve any supplemental discovery demands. While the wife now argues on appeal that the husband did not disclose certain documents or information, she failed to either identify such documents or information to Supreme Court in conjunction with her motion or request that the husband provide the documents and information in a supplemental discovery request. As such, the wife cannot now be heard to complain (see generally Kenneths Fine Repairs, LLC v. State of New York, 133 A.D.3d 1181, 1182, 21 N.Y.S.3d 412 [2015] ; Country Club Partners, LLC v. Goldman, 79 A.D.3d 1389, 1392–1393, 913 N.Y.S.2d 803 [2010] ).

As for the distributive award itself, Supreme Court's determination reflects a comprehensive weighing of the relevant statutory factors (see Domestic Relations Law § 236[B][5][d] ) and, as we discern no abuse of discretion in its determination, we will not disturb it (see Funaro v. Funaro, 141 A.D.3d 893, 896, 34 N.Y.S.3d 757 [2016] ; Kelly v. Kelly, 140 A.D.3d 1436, 1436–1437, 34 N.Y.S.3d 260 [2016] ). The wife specifically takes issue with Supreme Court's determination that the marital residence should be sold and the proceeds split evenly between the parties, after payment of the mortgage, home equity loan, realtor and counsel fees related to the sale of the house, closing costs and the parties' other marital debt. Although the wife expressed a desire to keep the marital residence, she acknowledged at trial that she was not in the financial position to afford the mortgage payments and carrying costs associated with the residence, and the evidence certainly supported her assessment. Additionally, contrary to the wife's assertion, Supreme Court acknowledged the fact that the parties had been renting out the marital residence for $1,300 per month and awarded the husband a credit for one half of the payments that he made during the pendency of the action toward the portion of the mortgage that was not covered by the rental income.

Nor, as the wife contends, was it improper for Supreme Court to conclude that the home equity loan taken on the marital residence was a marital debt and direct the parties to share in its repayment. Generally, " ‘outstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse who incurred them may be offset against the total marital assets to be divided’ " ( Lewis v. Lewis, 6 A.D.3d 837, 839, 775 N.Y.S.2d 387 [2004], quoting Feldman v. Feldman, 204 A.D.2d 268, 270, 611 N.Y.S.2d 879 [1994] ; see McKeever v. McKeever, 8 A.D.3d 702, 702, 777 N.Y.S.2d 781 [2004] ). Here, although the home equity loan was taken out in the husband's name alone, both the husband and the wife testified that it was used, at least in part, for home improvements. The wife also testified that the husband expressed his intention to use the remaining funds to pay joint credit cards. While the husband was unsure of the precise use of the remaining funds, he testified that they "were used for the family." Thus, in the absence of any evidence that the husband used the home equity loan to pay off his separate liabilities (see Ceravolo v. DeSantis, 125 A.D.3d 113, 119, 1 N.Y.S.3d 468 [2015] ; Lewis v. Lewis, 6 A.D.3d at 839, 775 N.Y.S.2d 387 ), Supreme Court did not abuse its discretion in directing that the home equity loan be paid out of the proceeds from the sale of the marital residence or, to the extent that such proceeds were insufficient, split equally among the parties (compare Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [2000] ). Further, we find no merit to the wife's argument that $30,800 should be deducted from her share of the marital debt to account for an employment benefit to which the husband was apparently entitled prior to the commencement of the action, but did not apply for or receive.

With respect to maintenance, Supreme Court is afforded broad discretion in fashioning the amount and duration of a maintenance award (see Barnhart v. Barnhart, 148 A.D.3d 1264, 1267, 48 N.Y.S.3d 818 [2017] ; Sprole v. Sprole, 145 A.D.3d 1367, 1368, 45 N.Y.S.3d 233 [2016] ; Roma v. Roma, 140 A.D.3d 1242, 1244, 32 N.Y.S.3d 703 [2016] ). We will not disturb Supreme Court's determination in this regard so long as it considered the parties' predivorce standard of living, as well as the statutory factors (see Domestic Relations Law § 236[B] [former (6)(a) ]; Ball v. Ball, 150 A.D.3d 1566, 1573–1574, 56 N.Y.S.3d 583 [2017] ; Cervoni v. Cervoni, 141 A.D.3d 918, 919, 34 N.Y.S.3d 792 [2016] ). "The court need not analyze and apply each and every factor set forth in the statute, but ‘must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance’ " ( Robinson v. Robinson, 133 A.D.3d 1185, 1186, 21 N.Y.S.3d 392 [2015], quoting Curley v. Curley, 125 A.D.3d 1227, 1228, 4 N.Y.S.3d 676 [2015] ; see Pfister v. Pfister, 146 A.D.3d 1135, 1137, 47 N.Y.S.3d 140 [2017] ).

Supreme Court's maintenance award reflects an appropriate consideration of, among other...