Ndulo v. Ndulo

• Decision Date: 29 October 2009
• Docket Number: 506069.
• Citation: 66 A.D.3d 1263,2009 NY Slip Op 7708,888 N.Y.S.2d 236
• Parties: MARJORIE GOMOLEMO NDULO, Appellant, v. MUNA BARON NDULO, Respondent.
• Court: New York Supreme Court — Appellate Division

66 A.D.3d 1263

888 N.Y.S.2d 236

2009 NY Slip Op 7708

MARJORIE GOMOLEMO NDULO, Appellant, v. MUNA BARON NDULO, Respondent.

506069.

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

Decided October 29, 2009.

Appeals (1) from a judgment of the Supreme Court (Mulvey, J.), entered April 4, 2008 in Tompkins County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court, and (2) from an order of said court, entered June 20, 2008 in Tompkins County, which partially denied plaintiff's motion for reconsideration.

Spain, J.P.

In July 2004, plaintiff commenced the instant action for divorce. The parties were married in the Republic of Zambia in 1975, where defendant became a professor at, and eventually dean of, the University of Zambia Law School. During this period, four daughters were born to the parties and plaintiff worked as a dental technician. In 1986, the family moved to Vienna, Austria where defendant took a position with the United Nations and plaintiff devoted her energies to the care of the children and support of defendant's career. In 1996, defendant joined the faculty at Cornell Law School and the family moved to the City of Ithaca, Tompkins County where plaintiff was first employed part time in a retail store and eventually as a full-time counselor at a local agency which provides assistance to people with special needs.

Marital assets include separate retirement accounts, the marital dwelling in Ithaca, real property in England and South Africa and real estate holdings and business interests in Zambia. Marital debt consists of the mortgage on the marital dwelling, credit card balances and balances on a number of loans taken out in defendant's name that are related to the high cost of educating their children over the years, expenses which continue to accumulate. The children have been educated at expensive private schools and Ivy League colleges, and all but the youngest—who was still in college at the time of the trial—have obtained graduate degrees.

Following a trial, Supreme Court ordered, among other things, an award of two separate parcels of real estate in Zambia—one each—to defendant and plaintiff, the sale of all remaining real estate—including the marital dwelling—with the proceeds to be a divided equally between the parties, along with the remainder of the parties' marital assets, maintenance of $3,000 per month for five years to plaintiff, and the remainder of their marital debt and all plaintiff's counsel fees to be paid by defendant. On a motion by plaintiff for reconsideration, the court found that an additional piece of Zambian real estate was marital property, ordered the sale of all Zambian real estate by January 1, 2009 and awarded plaintiff 50% of the marital portion of any preretirement death benefit payable from defendant's pension account (see Kazel v Kazel, 3 NY3d 331, 335 [2004]), but otherwise denied the motion. Plaintiff now appeals from both the April 2008 judgment of divorce and the June 2008 order partially denying reconsideration.

Upon our review of the full record before us, we find merit in plaintiff's major contention that Supreme Court's award of maintenance in the amount of $3,000 per month for a period of five years was insufficient. The amount and duration of maintenance is an issue generally left to the sound discretion of the trial court (see Schwalb v Schwalb, 50 AD3d 1206, 1210 [2008]; Burtchaell v Burtchaell, 42 AD3d 783, 784-785 [2007]; Carman v Carman, 22 AD3d 1004, 1008 [2005]; Sperling v Sperling, 165 AD2d 338, 341 [1991]) based upon the enumerated factors set forth in Domestic Relations Law § 236 (B) (6) (a), as well as the predivorce standard of living of the recipient spouse (see Hartog v Hartog, 85 NY2d 36, 50-51 [1995]; Quinn v Quinn, 61 AD3d 1067, 1071 [2009]; Bean v Bean, 53 AD3d 718, 723 [2008]). Maintenance is appropriate where, among other things, 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 (see Lorenz v Lorenz, 63 AD3d 1361, 1362 [2009]; Holterman v Holterman, 307 AD2d 442, 442 [2003], affd 3 NY3d 1 [2004]; Semans v Semans, 199 AD2d 790, 793). The fact that a wife 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 (see Hartog v Hartog, 85 NY2d at 36; see also Summer v Summer, 85 NY2d 1014, 1016 [1995]).

At the time this action was commenced, as found by Supreme Court, there was significant disparity in the parties' incomes with plaintiff earning $15,322 per year and defendant, as a tenured law professor, earning $173,600 per year. The parties had been married for 29 years and were each 59 years old. Although plaintiff had training in dental technology and worked as a dental technician in Zambia early in their marriage, she forfeited her dental technology career and has had, in the recent past, jobs at a retail store and a credit union, and presently at the local special needs agency.

Supreme Court considered these facts and all the relevant statutory factors (see Domestic Relations Law § 236 [B] [6] [a]) in setting maintenance and in ordering that defendant pay the costs for continuation of plaintiff's health insurance coverage through his employer under COBRA for the maximum period available. The court also ordered that all marital debt with the exception of the mortgage on the marital dwelling be paid by defendant, holding plaintiff harmless on those obligations, which the court found exceeded $200,000. Moreover, the court ultimately made defendant responsible for all plaintiff's counsel fees. As to the duration of the maintenance award, Supreme Court limited the award to a period of five years, finding a lifetime maintenance award to be unwarranted in light of the resources available to plaintiff upon the sale of the marital assets and plaintiff's responsibility for their marital debt.

Given the length of their marriage, defendant's ability to earn more than six times plaintiff's salary, the uncertainty with respect to the amount of...