Kelly v. Kelly

• Decision Date: 16 June 2016
• Parties: Jeananne KELLY, Appellant, v. James Elwood KELLY, Respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1436

34 N.Y.S.3d 260

2016 N.Y. Slip Op. 04764

Jeananne KELLY, Appellant,

v.James Elwood KELLY, Respondent.

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

June 16, 2016.

John Ferrara, Monticello, for appellant.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

DEVINE, J.

Appeal from a judgment of the Supreme Court (McGuire, J.), entered March 5, 2015 in Sullivan 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 1994 and have one unemancipated child who is primarily in the wife's care. The parties separated in 2011, and the wife commenced this action for divorce in 2014. The parties stipulated to the grounds for divorce and, because issues of custody and child support had largely been resolved in Family Court, the nonjury trial revolved around matters of equitable distribution and maintenance. Supreme Court thereafter issued a judgment that granted the divorce and ordered the husband to make biweekly child support payments of $333.76 to the wife. Supreme Court further distributed the marital property and debts and directed the husband to pay $500 a month in maintenance for 60 months which, after accounting for the wife's obligation to reimburse the husband for certain debts and sold assets, resulted in a net payment to the wife of $367.40 a month in spousal maintenance. The wife now appeals.

The wife challenges the equitable distribution award in various respects, but that “determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors” ( Williams v. Williams, 99 A.D.3d 1094, 1096, 952 N.Y.S.2d 662 [2012] ; see Robinson v. Robinson, 133 A.D.3d 1185, 1187, 21 N.Y.S.3d 392 [2015] ). Supreme Court considered the applicable factors and discovered that there were few positive assets to distribute beyond the husband's pension, as the value of the marital residence had been outstripped by substantial unpaid property taxes and debt secured by a mortgage on it. The husband has exclusively lived at the residence since 2012, has taken steps to begin paying off the back taxes and is indisputably in a better financial position than the wife to tackle the various debts associated with it. Supreme Court therefore directed that the husband take sole ownership of the residence if he assumed full responsibility for future carrying costs and refinanced the mortgage in his name alone; if he did not do so by a set date, the residence was to be sold and the net proceeds or losses would belong to the husband. Despite the conditional award of the residence to the husband, Supreme Court properly found the wife responsible for part of the back taxes relating to the time that she lived there (see Cornish v. Eraca–Cornish, 107 A.D.3d 1322, 1323, 968 N.Y.S.2d 659 [2013] ; Chabbott v. Chabbott, 306 A.D.2d 368, 369, 761 N.Y.S.2d 275 [2003] ). Supreme Court likewise did not abuse its discretion in declining to credit the wife for separate funds that she applied toward the down payment on the residence, as that contribution has been swamped by the flood of marital debt related to the residence (see Arnone v. Arnone, 36 A.D.3d 1170, 1172, 36 A.D.3d 1170 [2007] ). The wife complains of other aspects of the equitable distribution award as well but, suffice it to say, we discern nothing in it to constitute an abuse of discretion.

The wife further challenges the award of maintenance and, inasmuch as Supreme Court thoroughly reviewed the statutory factors, its maintenance award will not be disturbed absent an abuse of discretion (see Domestic Relations Law § 236[B] [former (6)]; Robinson v. Robinson, 133 A.D.3d at 1186, 21 N.Y.S.3d 392 ; Cornish v. Eraca–Cornish, 107 A.D.3d at 1324, 968 N.Y.S.2d 659 ). The parties are exiting a 19–year marriage as middle-aged high school graduates who are in good health. That being said, the husband earned roughly $60,000 a year plus an unknown amount of “off the books” income, while the wife earned approximately $28,000, and Supreme Court found that a significant increase in the wife's earning capacity was unlikely given her employment history and age. While we are...