McAteer v. McAteer

• Court: New York Supreme Court — Appellate Division
• Decision Date: 23 May 2002
• Docket Number: 90860,3
• Citation: McAteer v. McAteer (N.Y. App. Div. 2002)
• Parties: COLLEEN McATEER, Respondent-Appellant, v ROY C. McATEER JR., Appellant-Respondent. 90860 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:

COLLEEN McATEER, Respondent-Appellant v ROY C. McATEER JR., Appellant-Respondent

90860

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: March 27, 2002

Decided and Entered: May 23, 2002

Blatchly & Simonson, New Paltz (Bruce D. Blatchly of counsel), for appellant-respondent.

Larkin, Axelrod, Trachte & Tetenbaum L.L.P., Newburgh (Azra J. Khan of counsel), for respondent-appellant.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Mercure, Carpinello, Mugglin and Rose, JJ.

Mercure, J.

Cross appeals from a judgment of the Supreme Court (Vogt, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property and maintenance, entered May 18, 2001 in Ulster County, upon a decision of the court.

The parties were married in April 1974. They have one child, a son born in 1978. The parties separated in November 1989. During most of the period of the parties' separation, defendant paid child support of $175 per month and provided health insurance and a rent-free apartment for plaintiff and the child. An action for divorce commenced by defendant in July 1992 was dismissed after trial due to the legal insufficiency of the evidence presented in support of the ground for divorce.

Plaintiff commenced the present action for divorce on November 15, 1999. Ultimately, defendant consented to the entry of a judgment of divorce in favor of plaintiff and the parties stipulated that Supreme Court would determine the contested issues of maintenance and equitable distribution of defendant's pension on the parties' written submissions. Supreme Court initially awarded plaintiff $400 per month in lifetime maintenance beginning February 1, 2001, but later amended its decision so as to terminate maintenance when defendant began collecting Social Security benefits. Supreme Court distributed defendant's pension in accordance with the Majauskas formula, fixing the date of commencement of defendant's unsuccessful divorce action in July 1992 as the terminal date for determining the marital portion of defendant's earned pension rights (see, Majauskas v Majauskas, 61 N.Y.2d 481, 486; see also, Domestic Relations Law § 236 [B] [1] [c]). The parties cross-appeal.

Initially, we reject defendant's contention that Supreme Court abused its discretion in awarding plaintiff maintenance of $400 per month. Given the parties' stipulation that Supreme Court would determine the issue of maintenance on their written submissions, defendant will not be heard to contend that Supreme Court erred in failing to conduct an evidentiary hearing (see, Matter of Puff v Jorling, 188 A.D.2d 977, 981). Further, Family Court's prior refusals to award plaintiff spousal support were in no way binding on Supreme Court and were in any event largely premised on defendant's subsisting child support payments and additional housing support, both of which terminated prior to the effective date of the present award.

Nor are we persuaded that Supreme Court failed to satisfy the statutory requirement that it "set forth the factors it considered and the reasons for its decision" (Domestic Relations Law § 236 [B] [6] [b]). The matrimonial court is not required to analyze and apply every factor set forth in Domestic Relations Law § 236 (B) (6) (a) (see, Nielson v Nielson, 259 A.D.2d 916, 917). Rather, it suffices that the court "provide a reasoned analysis for its decision to award plaintiff spousal maintenance, including a discussion of the factors upon which it relied" (id., at 917). Given the length of the marriage, the fact that the parties are both in their early 50s, the substantial disparity in their incomes -- plaintiff earns $21,000 a year as a receptionist while defendant earns roughly $55,000 a year as a union construction worker -- and plaintiff's limited education, training and experience, the award of $400 per month is by no means excessive (see, Messemer v Messemer, 272 A.D.2d 672; Winnie v Winnie, 229 A.D.2d 677, 678-679).

Supreme Court did err, however, in fixing February 1, 2001 as the commencement date for the award of maintenance. An award of maintenance "shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall...