McCaffrey v. McCaffrey

• Decision Date: 06 June 2013
• Citation: 107 A.D.3d 1106,967 N.Y.S.2d 162,2013 N.Y. Slip Op. 04079
• Parties: John J. McCAFFREY Jr., Appellant–Respondent, v. Carolyn McCAFFREY, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1106
967 N.Y.S.2d 162
2013 N.Y. Slip Op. 04079

John J. McCAFFREY Jr., Appellant–Respondent,
v.
Carolyn McCAFFREY, Respondent–Appellant.

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

June 6, 2013.

[967 N.Y.S.2d 165]

Assaf & Siegal, PLLC, Albany (Michael D. Assaf of counsel), for appellant-respondent.

Friedman & Molinsek, PC, Delmar (Michael P. Friedman of counsel), for respondent-appellant.

Before: ROSE, J.P., LAHTINEN, SPAIN and GARRY, JJ.

SPAIN, J.

[107 A.D.3d 1106]Cross appeals from a judgment of the Supreme Court (Teresi, J.), entered February 17, 2012 in Albany County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

The parties were married in 1999. In late 2010, plaintiff (hereinafter the husband) commenced the instant action and the parties subsequently consented to a no-fault divorce. The parties stipulated to the value of the marital home and the division of certain marital property and the action proceeded to a nonjury trial for resolution of the remaining maintenance and equitable distribution issues. Following trial, Supreme Court, among other things, distributed the parties' marital debt to the husband, awarded defendant (hereinafter the wife) maintenance and a portion of the husband's enhanced earnings attributable to his college degrees, and ordered the wife to reimburse the husband for certain mortgage payments that accrued during the pendency of the action. The husband now appeals and the wife cross-appeals.

The husband first argues that Supreme Court abused its discretion by awarding the wife maintenance, which he contends is excessive and unwarranted in light of the wife's ability to be self-supporting and because, he argues, the court improperly found that he had wastefully dissipated marital assets. Viewing the record in its totality, we agree. “[T]he primary purpose of maintenance is to encourage self-sufficiency by the recipient” ( Quinn v. Quinn, 61 A.D.3d 1067, 1071, 876 N.Y.S.2d 720 [2009];accord Biagiotti v. Biagiotti, 97 A.D.3d 941, 942, 948 N.Y.S.2d 445 [2012] ), and “[m]aintenance is appropriate where ... the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor” [107 A.D.3d 1107]( Ndulo v. Ndulo, 66 A.D.3d 1263, 1265, 888 N.Y.S.2d 236 [2009];see Williams v. Williams, 99 A.D.3d 1094, 1095, 952 N.Y.S.2d 662 [2012] ). Here, the parties' marriage was not of particularly long duration (12 years), and they had no children together. When this action was commenced, the husband was 52 years old and the wife was 42 years old. Both parties were in good health and were gainfully employed, with the husband earning an annual salary of approximately $113,000 and the wife earning an annual salary of $65,000 ( compare Williams v. Williams, 99 A.D.3d at 1095–1096, 952 N.Y.S.2d 662). In addition, the wife had separate property consisting of $66,000 in a trust account and $27,000 in savings bonds, both of which she testified were in her name but had been set aside by her parents for their elder care. Supreme

[967 N.Y.S.2d 166]

Court found that both parties were self-supporting, and they stipulated to an equal division of their retirement and deferred compensation plans and neither party lost health insurance as a result of the divorce.

The wife correctly notes that “[t]he fact that [she] has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living” ( Ndulo v. Ndulo, 66 A.D.3d at 1265, 888 N.Y.S.2d 236;see Williams v. Williams, 99 A.D.3d at 1096, 952 N.Y.S.2d 662). However, “[t]he determination of an appropriate maintenance award requires[, among other things,] a delicate balanc [e] of each party's needs and means [or ability to pay]” ( Mairs v. Mairs, 61 A.D.3d 1204, 1208, 878 N.Y.S.2d 222 [2009] [internal quotation marks and citation omitted]; seeDomestic Relations Law § 236[B][6][a]; McAuliffe v. McAuliffe, 70 A.D.3d 1129, 1134, 895 N.Y.S.2d 228 [2010];Lorenz v. Lorenz, 63 A.D.3d 1361, 1363, 881 N.Y.S.2d 208 [2009];Gaglio v. Molnar–Gaglio, 300 A.D.2d 934, 939, 753 N.Y.S.2d 185 [2002] ). The record demonstrates that the parties' relatively high predivorce standard of living would not have been sustainable without the significant credit card debt. Indeed, the parties refinanced the marital residence, relying on much of its equity to reduce their debt. In our view, Supreme Court gave inadequate consideration to the balancing of the wife's needs—for which her own salary should provide adequate support—with the husband's ability to pay ( seeDomestic Relations Law § 236[B][6][a] ).

Moreover, the husband's alleged wasteful dissipation of marital assets as a ground for awarding maintenance is not supported by the record. The husband's minor legal expenses (around $1,100) associated with his defense of a criminal charge did not constitute wasteful dissipation of marital assets ( see Kohl v. Kohl, 24 A.D.3d 219, 219, 806 N.Y.S.2d 35 [2005] ). The record also demonstrates that the husband's expenditures on his paramour and their child—who was conceived during the husband's marriage[107 A.D.3d 1108]to the wife and born while this action was pending—were incurred after the date of commencement. Furthermore, the record reflects that the husband gambled only a few times during the parties' marriage, spent no more than $2,000 and broke even on all accounts, which does not rise to the level of wasteful dissipation ( see Treffiletti v. Treffiletti, 252 A.D.2d 635, 636–637, 675 N.Y.S.2d 192 [1998];compare Burnett v. Burnett, 101 A.D.3d 1417, 1419, 956 N.Y.S.2d 655 [2012] ). Although the wife accused the husband of incurring significant credit card debt without her knowledge, he testified that all of the charges—including those on his personal credit cards—were made for marital, household and work-related expenses. The wife did not rebut this testimony and, thus, the parties' credit card debt, including that charged on the husband's...