Oswald v. Oswald

• Decision Date: 19 October 1989
• Citation: Oswald v. Oswald, 546 N.Y.S.2d 475, 154 A.D.2d 817 (N.Y. App. Div. 1989)
• Parties: Jacqueline OSWALD, Respondent, v. Henry P. OSWALD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 475

546 N.Y.S.2d 475

154 A.D.2d 817

Jacqueline OSWALD, Respondent, v. Henry P. OSWALD, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 19, 1989.

Bookhout & Coccoma, P.C. (Ellen Leary Coccoma, of counsel), Oneonta, for appellant.

Ackerman, Wachs & Finton, P.C. (F. Stanton Ackerman, of counsel), Albany, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

KANE, Justice Presiding.

Appeal from that part of a judgment of the Supreme Court (Dier, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered November 30, 1988 in Washington County, upon a decision of the court.

The parties were married on October 10, 1975 and have one child, born in May 1978. Both defendant and plaintiff have children from previous marriages who have lived with the parties at various times during their marriage. At the time of the marriage, plaintiff was enrolled in college, with 90 credits completed toward a degree, and was employed part-time as a substitute teacher. Plaintiff has since left college and become employed as a secretary, while defendant is a self-employed attorney. The parties separated in July 1983 and this divorce action was commenced in September 1984. At trial in 1988, both parties stipulated to reciprocal uncontested divorces. After the trial, Supreme Court dissolved the marriage and ordered joint custody with plaintiff having physical custody of the child. Supreme Court also ordered payments to plaintiff of $100 per week maintenance for 13 years and child support in the amount of $140 per week. The parties' marital property was identified to include a joint bank account totaling $22,000, the marital residence and adjacent lot valued at $160,000, household furnishing and four automobiles. It was ordered, inter alia, that defendant was to have the marital residence and adjacent lot in exchange for $70,515.79 and the bank account was to be divided equally with defendant's share awarded to plaintiff, leaving a net distributive award to plaintiff of $59,515.79. Supreme Court also awarded plaintiff counsel fees and disbursements totaling $15,000. Defendant now appeals the equitable distribution order as well as the awards of maintenance, child support, and counsel fees and expenses.

Defendant's first contention is that, in granting maintenance to plaintiff, Supreme Court either misapplied or failed to give appropriate consideration to all the pertinent statutory factors contained in Domestic Relations Law § 236(B)(6). We disagree. Supreme Court meticulously listed its conclusions as to the salient factors in this case and their bearing on awarding maintenance. A review of the record reveals that Supreme Court appropriately found plaintiff to be marginally self-sufficient, having suffered reduced earning capacity by foregoing a college degree to work as a homemaker during the marriage (see, Domestic Relations Law § 236[B][6][a][5] and having retained physical custody of the parties' child (see, Domestic Relations Law § 236[B][6][a][6]. Additionally, even were we to accept defendant's own net salary figure of $45,000, there still exists a substantial disparity between the parties' earning capacities, considering plaintiff's net salary of $18,000 (see, Domestic Relations Law § 236[B][6][a][3]. That the marriage was only of eight years' duration and plaintiff received a distributive award does not alter our conclusion that maintenance was properly granted in this instance.

We do, however, find error in Supreme Court's order of maintenance for 13 years. Apparently, this specific temporal limitation was the result of plaintiff's request that maintenance continue until she is eligible to collect Social Security benefits. Maintenance is designed to give the spouse economic independence (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712) and should continue only as long as that required to render the recipient self-supporting (see, Cohen v. Cohen, App.Div., 546 N.Y.S.2d 473; Culnan v. Culnan, 142 A.D.2d 805, 807, 530 N.Y.S.2d 688, lv. dismissed 73 N.Y.2d 994, 540 N.Y.S.2d 1005, 538 N.E.2d 357). Here, given plaintiff's level of education and current employment status, we conclude that she has the ability to become self-supporting within 10 years, by which time the parties' child will have reached majority (see, Donnelly v. Donnelly, 144 A.D.2d 797, 798-799, 534 N.Y.S.2d 766, appeal dismissed 73 N.Y.2d 992, 540 N.Y.S.2d 1001, 538 N.E.2d 353), defendant will have reached a common retirement age and plaintiff's pension rights will have vested (see, Anglin v. Anglin, 148 A.D.2d 833, 538 N.Y.S.2d 668).

Defendant next argues that Supreme Court overvalued the marital residence and vacant lot by erroneously accepting the testimony of plaintiff's appraiser, whom defendant claims was less experienced than his own expert. We initially note that although the court failed to specifically set forth its findings as to how the value...