Lisetza v. Lisetza

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KANE; LEVINE; KANE
• Citation: Lisetza v. Lisetza, 523 N.Y.S.2d 632, 135 A.D.2d 20 (N.Y. App. Div. 1988)
• Decision Date: 14 January 1988
• Parties: Anna LISETZA, Respondent, v. Frank H. LISETZA, Appellant.

Page 632

523 N.Y.S.2d 632

135 A.D.2d 20

Anna LISETZA, Respondent, v. Frank H. LISETZA, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 14, 1988.

Kantrowitz & Goldhamer, P.C. (Amy Baldwin Littman and Paul B. Goldhamer, of counsel), Spring Valley, N.Y., for appellant.

Kalter & Kaplan (Richard J. Kaplan and Ivan Kalter, of counsel), Woodbourne, N.Y., for respondent.

Before KANE, J.P., and CASEY, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Plaintiff and defendant were married, each for the second time, in 1978. This divorce action was commenced some six years later. There were no children from the marriage and plaintiff's children from her prior marriage had fully attained majority and were self-supporting. At the time of the marriage, plaintiff owned a 23.8-acre undeveloped parcel, and a 5.2-acre parcel and dwelling in Woodbourne, Sullivan County, which she had inherited upon the death of her first husband in 1977. She had also received some $35,000 in cash at her husband's death, which was expended in the early years of the parties' marriage. Some six months after the parties married, plaintiff received a gift from her mother of a house in East Elmhurst, Queens County. This property was sold by plaintiff for $72,000 and the proceeds invested in interest-bearing securities. When the parties married, defendant owned a residence on Bouck Avenue, Bronx County and a leasehold proprietorship of a Mobil gas service station in Bronx County. He also owned unimproved land in New Jersey and two five-acre parcels of land in Colorado, one purchased in 1967 and the other in 1974. The service station was sold by him in 1981 for $60,000 following several years of operating losses. In 1978 the parties purchased a marital residence in Bayside, Queens County, for $55,000. The $20,000 down payment was made from premarital funds of defendant. After the sale of the Mobil station, defendant and plaintiff moved to plaintiff's home in Woodbourne. Defendant took a machinist position with a hardware company in a nearby community. They sold the Bayside residence to one of plaintiff's sons for $73,000, of which, under the contract of sale, the first $15,000 went directly to plaintiff and the net balance was to be paid to the parties jointly.

The parties separated in late 1983 and this divorce action was commenced by plaintiff in January 1984, in which she requested an award of maintenance, equitable distribution of marital property and counsel fees. Defendant withdrew his answer and did not contest the divorce. The parties also stipulated that plaintiff's two parcels in Woodbourne and the $72,000 proceeds of the sale of her house in East Elmhurst were her separate property, and that defendant's Bouck Avenue house in Bronx County, land in New Jersey and his individual retirement accounts set up after the divorce action was started were his separate property.

Following a trial of the remaining disputed financial issues, Supreme Court rendered a decision disposing of those issues as follows. Plaintiff was awarded maintenance of $75 per week for an indeterminate period to end at her death or remarriage. Plaintiff was also awarded one of the two parcels of land in Colorado. Defendant was granted the entire proceeds of the sale of the service station and the entire interest in his pension plan with his employer. Plaintiff was permitted to retain the entire $15,000 received solely by her from the sale of the Bayside residence, with the balance divided equally between the parties. The court denied defendant's request for a share in the appreciation in the value of plaintiff's Woodbourne properties, but was given a $500 credit for the value of certain improvements he made to the home on the 5.2-acre parcel. The court also rejected defendant's claim that plaintiff share in his debts of some $10,000. Counsel fees were awarded to plaintiff in the sum of $2,500 and witness fees of $500. This appeal by defendant ensued.

In our view, the disposition of the financial issues by Supreme Court was proper in all but two respects. As to the maintenance award, the evidence established plaintiff's needs of some $395 a week. She was 56 years old and afflicted with a hyperthyroid condition, bacterial endocarditis, arrhythmia and phlebitis, which disabled her from employment. Her interest income on the investment of the proceeds of the sale of the East Elmhurst property was approximately $500 per month. Even taking into account the potential income upon disposition of both Woodbourne properties, the net proceeds of sale of which, according to the evidence, would aggregate about $65,000, the maintenance award would still be inadequate to meet her entire needs. Plaintiff and her family materially assisted defendant in the preservation of his service station through its difficult financial times and before its sale. She received no distributive share of the proceeds of that sale. Defendant could expect an annual income from his employment of about $21,500 and annual net rental income from the Bouck Avenue property of some $2,500. Given the foregoing circumstances, there is no reason to disturb a permanent award of maintenance as fixed by Supreme Court, despite the relatively short duration of the marriage ( see, Wilbur v. Wilbur, 116 A.D.2d 953, 954-955, 498 N.Y.S.2d 525). The court was authorized to award maintenance retroactively to the commencement of the action, since the complaint contains an application for maintenance (Domestic Relations Law § 236[B][6][a]; see, Harness v. Harness, 99 A.D.2d 658, 472 N.Y.S.2d 234).

We also find no reason to disturb Supreme Court's refusal to award defendant a share of the $15,000 which plaintiff received separately from the sale of the Bayside residence to her son, as part of the total sales proceeds of $73,000. The evidence supports Supreme Court's finding that the parties had agreed to this allocation at the time of sale. As conceded by defendant, he and plaintiff's son had initially arrived at a complete understanding that the purchase...