Lester v. Lester

• Decision Date: 14 March 1997
• Citation: 237 A.D.2d 872,654 N.Y.S.2d 528
• Parties: C. Richard LESTER, Respondent, v. Diane L. LESTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 528

654 N.Y.S.2d 528

237 A.D.2d 872

C. Richard LESTER, Respondent, v. Diane L. LESTER, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

March 14, 1997.

Alderman and Alderman by Edward Alderman, Syracuse, for Appellant.

Di Caprio and Di Caprio, P.C. by Anthony Di Caprio, Syracuse, for Respondent.

Before GREEN, J.P., and LAWTON, FALLON, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Defendant wife appeals from those portions of a judgment of divorce that, after a trial of economic issues only, awarded her limited spousal maintenance, child support, and equitably distributed the parties' marital property, including plaintiff's interest in a closely held corporation.

Upon our review of the record, we conclude that Supreme Court did not abuse its discretion in awarding defendant, who was 38 years old and admittedly able to become self-supporting, limited spousal maintenance for rehabilitative purposes for a period of three years (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 N.E.2d 15; Drohan v. Drohan, 193 A.D.2d 1070, 1071-1072, 599 N.Y.S.2d 200; Torgersen v. Torgersen, 188 A.D.2d 1023, 1024, 592 N.Y.S.2d 539, lv. denied 81 N.Y.2d 709, 599 N.Y.S.2d 803, 616 N.E.2d 158). The record establishes that the court properly considered the statutory factors and properly balanced defendant's needs and plaintiff's ability to pay (see, Drohan v. Drohan, supra, at 1072, 599 N.Y.S.2d 200).

Defendant contends that the court erred in failing to apply the child support percentage of the Child Support Standards Act to the combined parental income over $80,000. Where, as here, the combined parental income exceeds $80,000, the statute affords the court an option to consider the factors set forth in Domestic Relations Law § 240(1-b)(f) "and/or the child support percentage" (Domestic Relations Law § 240[1-b][c][3] ). Although the statute vests the court with discretion whether to apply the statutory percentage in fixing the basic child support obligation on parental income over $80,000, there must be some "record articulation of the reasons for the court's choice * * * to facilitate * * * review" (Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878; see, Zaremba v. Zaremba, 222 A.D.2d 500, 635 N.Y.S.2d 532). Inasmuch as the court failed to set forth the reasons for the amount of child support awarded, we remit the matter to Supreme Court to set forth the factors it considered and the reasons for its determination (see, Zaremba v. Zaremba, supra ). In addition, under the circumstances of this case, we conclude that the court erred in failing to direct that plaintiff obtain or maintain a policy of life insurance for the benefit of the parties' minor children (see, Domestic Relations Law § 236[B][8][a]; see also, Burns v. Burns, 193 A.D.2d 1104, 1105, 598 N.Y.S.2d 888, mod. on other grounds 84 N.Y.2d 369, 618 N.Y.S.2d 761, 643 N.E.2d 80; Warshaw v. Warshaw, 169 A.D.2d 408, 409, 564 N.Y.S.2d 137).

We further conclude that the court erred in failing to make the awards of spousal maintenance and child support retroactive to the date of defendant's application, which in this case was the date of defendant's answer, February 11, 1993 (see, Domestic Relations Law § 236[B][6][a]; DiSanto v. DiSanto, 198 A.D.2d 838, 604 N.Y.S.2d 413; Berge v. Berge, 159 A.D.2d 960, 961, 552 N.Y.S.2d 779). Plaintiff, however, is entitled to a credit for any maintenance and child support he voluntarily paid to defendant after the date of the application therefor (see, Berge v. Berge, supra, at 961, 552 N.Y.S.2d 779; Petrie v. Petrie, 124 A.D.2d 449, 451, 507 N.Y.S.2d 550, lv. dismissed 69 N.Y.2d 1038, 517 N.Y.S.2d 1030, 511 N.E.2d 89). Although plaintiff contends that his voluntary payments exceed any retroactive award, the record is not sufficiently clear for our Court to make that determination and thus, the matter must be remitted to Supreme Court for that purpose as well.

A major issue at trial concerned the valuation and distribution of plaintiff's 50% interest in a closely held corporation that operates a number of rustproofing shops. Both parties presented expert testimony on the issue of valuation. The court adopted the analysis of plaintiff's expert and determined the value of plaintiff's interest in the corporation to be $314,524. In the equitable distribution of the parties' assets, the court awarded 25% of plaintiff's interest in the business to defendant and 25% of plaintiff's interest in a real estate partnership, less certain credits, to be paid out over a 10-year period in equal yearly payments commencing one year after entry of judgment, plus interest at the rate of 1% over prime.

Upon our review of the record, we conclude that the court's valuation of plaintiff's 50% interest in the closely...