Neumark v. Neumark

• Decision Date: 05 May 1986
• Citation: 120 A.D.2d 502,501 N.Y.S.2d 704
• Parties: Frances P. NEUMARK, Appellant-Respondent, v. Matthias NEUMARK, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 704

501 N.Y.S.2d 704

120 A.D.2d 502

Frances P. NEUMARK, Appellant-Respondent, v. Matthias NEUMARK, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

May 5, 1986.

Weitz & Semensohn (Seligson, Rothman & Rothman, New York City, Martin S. Rothman, Aaron Weitz and Alyne I. Diamond, of counsel), for appellant-respondent.

Warren B. Silverkleit, White Plains, for respondent-appellant.

Before MOLLEN, P.J., and RUBIN, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her notice of appeal and brief, from so much of an order and judgment (one paper), of the Supreme Court, Westchester County (Palella, J.), dated October 30, 1984, as (1) awarded sole and exclusive possession of the parties' rental property to the defendant; (2) awarded her only a 20% share of the defendant's vested pension benefits which had accrued during the course of the marriage and failed to equitably distribute the defendant's profit-sharing benefits, and (3) awarded her the sum of $2,500 per month as maintenance for a period of only seven years or until her death or remarriage, whichever occurs first, and the defendant husband cross-appeals, as limited by his brief, from so much of the same order and judgment as (1) distributed the three parcels of jointly-held real property between the parties; (2) ordered him to pay to the plaintiff the sum of $28,897.24 as temporary maintenance and support arrears and (3) directed that a hearing be conducted on the issue of the plaintiff's counsel fees.

On the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal from so much of the order and judgment as directed a hearing on the issue of the plaintiff's counsel fees. The application is referred to Justice Kooper and leave to appeal is granted by Justice Kooper.

Order and judgment modified, on the law and the facts by (1) deleting the fourth decretal paragraph thereof, and by substituting therefor a provision awarding to the plaintiff a 50% share in the defendant's vested pension benefits and a 50% share in the defendant's profit sharing benefits, to the extent, if any, that said benefits accrued between the date of the marriage and the date of commencement of this divorce action; and (2) deleting from the sixth decretal paragraph the words "her remarriage or the expiration of seven years from the date of the first monthly payment" and by substituting therefor the words "or remarriage". As so modified, order and judgment affirmed, insofar as appealed from, with costs to the plaintiff, and matter remitted to the Supreme Court, Westchester County, for a hearing and determination of the value of the defendant's vested pension benefits and profit-sharing benefits which accrued from the date of the marriage until the date of the commencement of this action for divorce, and for further proceedings consistent herewith.

The parties were married on August 9, 1958, and the plaintiff subsequently obtained a divorce on January 4, 1984 on the ground of abandonment. All ancillary issues were referred to the trial court. In June 1984 a trial was conducted with regard to those issues. The results of that trial form the basis for the current appeal.

On the basis of the evidence adduced at trial, we find no error in the court's equitable distribution between the parties of three parcels of jointly-held real property. Although the plaintiff received a slightly greater share of the net equity in the properties than did the defendant, the distribution properly reflected the parties' relative financial positions (see generally, Ackley v. Ackley, 100 A.D.2d 153, 472 N.Y.S.2d 804, lv. dismissed 63 N.Y.2d 772; Rodgers v. Rodgers, 98 A.D.2d 386, 470 N.Y.S.2d 401, appeal dismissed 62 N.Y.2d 646).

Furthermore, we discern no impropriety in the court's fixing of the defendant's temporary maintenance and support arrears at $28,897.24. The defendant's claim that this amount should have been reduced by the sums he expended in supporting the parties' son while he was away at college, and by a portion of the net profits derived by the plaintiff from the jointly-owed rental property, is unpersuasive. The record reveals that the defendant unilaterally reduced his temporary maintenance and support payments to the plaintiff despite the existence of a court order, subsequently affirmed by this court, which rejected his application for a downward modification (Neumark v. Neumark, 97 A.D.2d 537, 468 N.Y.S.2d 43). Hence, the unilateral reduction was improper (see, Klein v. Klein, 53 A.D.2d 579, 384 N.Y.S.2d 1005, appeal dismissed sub nom. Patron v. Patron, 40 N.Y.2d 582, 388 N.Y.S.2d 890, 357 N.E.2d 361). Additionally, the record indicates that the plaintiff derived no net profits from the rental premises; thus the trial court did not err in refusing to reduce the arrears.

However, the trial court did commit error in awarding to the plaintiff only a 20% share of the vested pension benefits of the defendant. The trial testimony established that, in addition to pension benefits, the defendant also participated in a profit sharing plan at his place of employment. Pension rights which accrue between the date of the marriage and the commencement of a divorce action constitute marital...