Lubrano v. Lubrano

• Decision Date: 19 November 2014
• Docket Number: 2012-11041
• Parties: Erin Marie LUBRANO, respondent, v. Vincent LUBRANO, appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 807

995 N.Y.S.2d 741

2014 N.Y. Slip Op. 07988

Erin Marie LUBRANO, respondent

v.Vincent LUBRANO, appellant.

2012-11041

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

Nov. 19, 2014.

Phillip J. Jusino, Lake Grove, N.Y., for appellant.

Campagna Johnson, P.C., Hauppauge, N.Y. (Christopher J. Chimeri of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

Opinion

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Quinn, J.), entered December 5, 2012, which, upon a decision of the same court dated October 5, 2012, made after a nonjury trial, inter alia, awarded the plaintiff weekly maintenance in the sum of $150 from October 1, 2012, through September 30, 2013, maintenance arrears in the sum of $9,750, the sum of $8,000, representing one half of a debt consolidation loan, and the sum of $38,000 toward the plaintiff's counsel fees.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the sum of $8,000, representing one half of a debt consolidation loan; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

When determining a maintenance obligation, “[w]here a party's account of his or her finances is not believable, the court may impute a true or potential income higher than that alleged”(DiPalma v. DiPalma, 112 A.D.3d 663, 664, 977 N.Y.S.2d 276 ; see Kessler v. Kessler, 118 A.D.3d 946, 991 N.Y.S.2d 43 ). Here, the Supreme Court providently exercised its discretion in imputing income to the defendant based on circumstances including his failure to account for income that he received from rental property (see Turco v. Turco, 117 A.D.3d 719, 722, 985 N.Y.S.2d 261 ; DiPalma v. DiPalma, 112 A.D.3d at 664, 977 N.Y.S.2d 276 ; Scammacca v. Scammacca, 15 A.D.3d 382, 790 N.Y.S.2d 482 ; Parise v. Parise, 13 A.D.3d 504, 505, 787 N.Y.S.2d 360 ).

“[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 ; see DiBlasi v. DiBlasi, 48 A.D.3d 403, 404, 852 N.Y.S.2d 195 ; Griggs v. Griggs, 44 A.D.3d 710, 711, 844 N.Y.S.2d 351 ). In view of the relevant factors, including the income of the parties, the present and future earning capacity of the parties, and the parties' pre-separation standard of living, the Supreme Court providently exercised its discretion in awarding the plaintiff weekly maintenance in the sum of $150 from October 1, 2012, through September 30, 2013 (see Domestic Relations Law § 236[B][6][a] ; Scarlett v. Scarlett, 35 A.D.3d 710, 711, 830 N.Y.S.2d 156 ; Hale v. Hale, 16 A.D.3d 231, 234–235, 792 N.Y.S.2d 27 ; Palumbo v. Palumbo, 10 A.D.3d 680, 681, 782 N.Y.S.2d 106 ).

In addition, the Supreme Court properly determined that the defendant owed maintenance arrears in the sum of $9,750. The defendant's contention that he should be relieved of this obligation is without merit, as he failed to seek appropriate relief and, instead, resorted to self-help (see Domestic Relations Law § 236[B][9][b] ; Theodoreu v. Theodoreu, 225 A.D.2d 686, 687, 639 N.Y.S.2d 831 ; cf. Garcia v. Garcia, 104 A.D.3d 806, 807, 961 N.Y.S.2d 517 ).

In light of factors such as the disparity in income between the parties, the relative merits of the parties' positions, and the defendant's conduct which delayed the proceedings, the Supreme Court properly directed the defendant to pay a portion of the plaintiff's counsel fee (see Domestic Relations Law § 237[a] ; Levine v. Levine, 24 A.D.3d 625, 626, 807 N.Y.S.2d 384 ).

The Supreme Court properly determined that the plaintiff is entitled to an award in the sum of $55,000, representing her equitable share of the...