Lombardo v. Lombardo

• Decision Date: 05 November 1998
• Parties: 1998 N.Y. Slip Op. 9479 John P. LOMBARDO, Respondent, v. Florence F. LOMBARDO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 270

680 N.Y.S.2d 270

1998 N.Y. Slip Op. 9479

John P. LOMBARDO, Respondent, v. Florence F. LOMBARDO, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 5, 1998.

Sukloff & Schanz (Donald M. Sukloff, of counsel), Binghamton, for appellant.

Riehlman, Shafer & Shafer (Julie A. Campbell, of counsel), Cortland, for respondent.

Before CARDONA, P.J., and PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ.

CARPINELLO, Justice.

Appeal from a judgment from the Supreme Court (Rumsey, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered April 16, 1997 in Cortland County, upon a decision of the court.

The parties to this action were married in 1974 and have no children together. Plaintiff (born in 1943) is a tenured college professor with a Ph.D. in psychology who also maintains a part-time private practice. He was employed as an assistant professor of psychology at the time of the marriage and became licensed to practice shortly thereafter. His income from these sources steadily increased over the years with his 1995 income totaling $117,878. Accordingly, the parties were able to lead a comfortable, although not opulent, lifestyle which included the purchase of a 16-acre farm and yearly vacations. Although plaintiff takes medication for a blood pressure condition diagnosed in the 1970s, his health was characterized as good. Defendant (born in 1940) has a high school education and was employed as a dental assistant until shortly after the marriage, at which time she quit to become a full-time homemaker. Defendant has not been formally employed since that time.

Plaintiff commenced this action for divorce in 1994 alleging cruel and inhuman treatment. At the time of the subject proceeding, defendant was under treatment with a psychiatrist for depression and insomnia for which she was taking medication. Due to defendant's fragile mental state, a guardian ad litem was appointed to protect her interests. Prior to trial, the parties entered into a stipulation agreeing on the value and distribution of the $579,465 marital estate, exclusive of plaintiff's practice. ¹ The parties signed an additional stipulation in which they agreed that plaintiff would pay defendant a distributive award of $18,000 at a rate of $500 a month for 36 months, representing defendant's share of the professional practice.

The trial was restricted to the issues of maintenance and responsibility for payment of, inter alia, appraisal and counsel fees and defendant's health insurance. At the conclusion of proof, plaintiff was ordered to pay nondurational spousal maintenance of $1,500 per month until September 2002 and $800 per month thereafter, terminating upon the death of either party or upon defendant's remarriage. Plaintiff was also ordered to pay maintenance arrears in the amount of $11,800 in installments of not less than $200 per month. Defendant was directed to pay her own health insurance although plaintiff was to cooperate with his employer in ensuring that she pay a reduced rate of $200 per month for 36 months pursuant to the employer's COBRA plan (see, Sally v. Sally, 225 A.D.2d 816, 638 N.Y.S.2d 832). Defendant appeals.

Defendant argues that the maintenance award was inadequate and does not correspond to the standard of living to which she had become accustomed during the marriage (see generally, Hartog v. Hartog, 85 N.Y.2d 36, 50-51, 623 N.Y.S.2d 537, 647 N.E.2d 749). "As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court * * * " (Boughton v. Boughton, 239 A.D.2d 935, 659 N.Y.S.2d 607 [citations omitted] ). With respect to the subject award, we note that Supreme Court gave consideration to each of the statutory factors, including the marital standard of living as well as the parties' income and future earning capacity (see, Domestic Relations Law § 236[B][6] ) and "rendered a determination based upon its exercise of discretion" (Grenier v. Grenier, 210 A.D.2d 557, 558, 620 N.Y.S.2d 139).

In doing so, Supreme Court found that plaintiff's monthly earnings from his employment between 1992 and 1995 averaged $6,250 after Federal and State taxes. His monthly expenses were approximately $5,025, exclusive of maintenance payments (but including $550 for vacations and dining out), leaving a surplus of $1,225 per month. In contrast, the court found that defendant detailed expenses in the amount of approximately $2,000 per month "[w]ithout provision for costs for health insurance, travel, and purchases commensurate with her predivorce standard of living". The court noted that, along with the maintenance from plaintiff, defendant would receive approximately $1,100 per month from her half of plaintiff's pension, approximately $400 per month in interest earnings...