Massirman v. Massirman

• Decision Date: 23 November 2010
• Citation: 911 N.Y.S.2d 462,78 A.D.3d 1021
• Parties: Dana MASSIRMAN, respondent, v. Sharon MASSIRMAN, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 462

78 A.D.3d 1021

Dana MASSIRMAN, respondent,

v.Sharon MASSIRMAN, appellant.

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

Nov. 23, 2010.

DiLorenzo & Rush, Bronx, N.Y. (Kenneth R. Rush of counsel), for appellant.

FRED T. SANTUCCI, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Rockland County (Nelson, J.), dated July 25, 2008, as awarded her only five years of maintenance, awarded her a distributive share of only 25% of the plaintiff's interest in a business, and awarded her an attorney's fee in the sum of only $20,000.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

"The trial court, which had the opportunity to view the demeanor of the witnesses, [is] in the best position to gauge their credibility" ( Peritore v. Peritore, 66 A.D.3d 750, 753, 888 N.Y.S.2d 72; see Varga v. Varga, 288 A.D.2d 210, 211, 732 N.Y.S.2d 576). Here, we perceive nobasis to disturb the Supreme Court's conclusion that the defendant's credibility was " diminished by her failure to produce business records, and her failure to list significant assets on her initial net worth statement," including any mention of her business, Alchemy Fashions. Moreover, "[t]he paucity of information provided ... and the minimal efforts expended by the [defendant] in attempting to provide ... documentation of [her] finances, clearly display[ed] a lack of good faith" on her part ( Richter v. Richter, 131 A.D.2d 453, 455, 515 N.Y.S.2d 876).

Moreover, the "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 unique facts" ( Grasso v. Grasso, 47 A.D.3d 762, 764, 851 N.Y.S.2d 213; see Brooks v. Brooks, 55 A.D.3d 520, 867 N.Y.S.2d 451; DeVries v. DeVries, 35 A.D.3d 794, 796, 828 N.Y.S.2d 142). "Maintenance is designed to give the spouse economic independence, and should continue only as long as is required torender the recipient self-supporting" ( Schenfeld v. Schenfeld, 289 A.D.2d 219, 220, 734 N.Y.S.2d 465 [citations omitted]; see DeVries v. DeVries, 35 A.D.3d at 796, 828 N.Y.S.2d 142; Palestra v. Palestra, 300 A.D.2d 288, 289, 751 N.Y.S.2d 509). Here, the defendant contends that the Supreme Court improvidently exercised its discretion in failing to either award her maintenance for life or for a duration longer than five years. However, the Supreme Court found that the defendant offered no evidence of ill health and that there was no evidence that she "reduce[d] or [lost] lifetime earning capacity as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage" ( Palestra v. Palestra, 300 A.D.2d at 289, 751 N.Y.S.2d 509). Indeed, except for several years before and after the parties' son was born, the defendant continuously worked in the field of high-end clothing retail, operating her own businesses for most of the marriage. Moreover, the Supreme Court credited the plaintiff's testimony regarding the declining state of his business, and rejected the defendant's testimony that her business did not yield any profits in light of her failure to provide the requisite documentation. Accordingly, under all of the circumstances, the maintenance award was proper ( cf. Lovece v. Lovece, 245 A.D.2d 345, 665 N.Y.S.2d 436).

In addition,...