Mann v. Mann

• Court: New York Supreme Court — Appellate Division
• Citation: Mann v. Mann, 665 N.Y.S.2d 238, 244 A.D.2d 928 (N.Y. App. Div. 1997)
• Decision Date: 19 November 1997
• Parties: , 1997 N.Y. Slip Op. 9739 Robert MANN, Respondent, v. Marilyn MANN, Appellant.

Page 238

665 N.Y.S.2d 238

244 A.D.2d 928, 1997 N.Y. Slip Op. 9739

Robert MANN, Respondent, v. Marilyn MANN, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 19, 1997.

Olver, Korts, Korona & Russell, L.L.P. by Janet Korts, Pittsford, for Defendant-Appellant.

Finucane and Hartzell (Thomas C. Hartzell, Jr., of counsel), Pittsford, for Plaintiff-Respondent.

Before DENMAN, P.J., and GREEN, WISNER, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from so much of a judgment of divorce as ordered plaintiff to pay defendant $2,500 per month in maintenance for 30 months; directed plaintiff to convey his interest in the marital residence to defendant; and denied defendant's request for reimbursement of $37,688.96 in attorney's fees. Defendant seeks nondurational maintenance of at least $3,500 per month; contends that Supreme Court erred in awarding her title to the marital residence because she did not request such award and because the court failed to take into account the expenses and capital gains taxes to be incurred by defendant upon her inevitable sale of the residence; and seeks to compel plaintiff to pay a portion of her counsel fees.

The record establishes that defendant earns less than $13,000 a year working part time as a nurse in an allergist's office and that, for most of the parties' 28-year marriage, defendant forsook career and educational opportunities in order to assume the role of homemaker and primary caretaker of the children. Defendant is pursuing her master's degree in nursing, which she expects to obtain in the year 2001. Although the court found that plaintiff has income of about $96,000 per year as a self-employed consultant, the record suggests that his true income is considerably greater. He admits paying his girlfriend nearly $320,000 in the 2 1/2 years preceding the hearing, and further admits transferring his firm's interests in various lucrative contracts to a corporation formed by his girlfriend. Considering all of the circumstances, particularly the length of the marriage, the marital lifestyle, the disparity in the parties' incomes, defendant's sacrifice of career and educational opportunities during the marriage and defendant's current educational needs, we modify the court's award of maintenance by directing plaintiff to pay defendant maintenance of $3,500 per month for a period of 65 months beginning January 1, 1996 (see, Domestic Relations Law § 236[B][6][a][1]-[5]; Lampard v. Lampard, 219 A.D.2d 835, 632 N.Y.S.2d 368; Schlosberg v. Schlosberg, 163 A.D.2d 381, 558 N.Y.S.2d 111).

We also conclude that the court abused its discretion in denying defendant's request that plaintiff be ordered to contribute to defendant's counsel fees. Although the court noted the "limited liquid assets available to the respective parties," it is more significant that plaintiff's...