Pottala v. Pottala

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MAIN; YESAWICH
• Citation: Pottala v. Pottala, 490 N.Y.S.2d 936, 112 A.D.2d 553 (N.Y. App. Div. 1985)
• Decision Date: 11 July 1985
• Parties: Beverly A. POTTALA, Respondent, v. E. Victor POTTALA, Appellant.

Page 936

490 N.Y.S.2d 936

112 A.D.2d 553

Beverly A. POTTALA, Respondent, v. E. Victor POTTALA, Appellant.

Supreme Court, Appellate Division Third Department.

July 11, 1985.

Nicholas D. Morsillo, Schenectady, for appellant.

Grasso, Rodriguez, Purtoti & Grasso, Schenectady (Michael E. Basile, Schenectady, of counsel), for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

YESAWICH, Justice.

Appeal from that part of a judgment of the Supreme Court ordering equitable distribution of the parties' marital property and maintenance to plaintiff, entered May 2, 1984 in Schenectady County, upon a decision of the court at Trial Term, without a jury.

The parties were married on April 15, 1972. There were no children born of this union, the second marriage for each spouse. By late 1981, the marriage had completely curdled and plaintiff sued for divorce. A decree granting her a divorce based on defendant's cruel and inhuman treatment was rendered. Defendant is particularly critical of two aspects of the decree, namely, (1) the extent of plaintiff's interest in defendant's pension, such interest to vest on his retirement, and (2) a maintenance award to plaintiff of $110 per week, retroactive to the commencement of the action (and offset by payments of temporary maintenance defendant actually made), and terminable on plaintiff's remarriage or defendant's retirement. Beyond that, defendant maintains that reversal is required because plaintiff's net worth statement is grossly inaccurate and the trial was replete with irregularities.

The last-mentioned argument focuses on errors Trial Term allegedly committed in its treatment, not of the issue of the parties' property, but testimony and pleadings concerning the grounds for the divorce. Those claimed errors are not germane to this appeal, which is limited by the amended notice of appeal to "each and every part of [the judgment] except that part of said judgment which granted a dissolution of the marriage"; hence, they cannot justify a reversal.

As for defendant's criticism that plaintiff's statement of net worth is so grossly inaccurate as to make a reasonable assessment of her financial worth impossible it is true that a "patently unbelievable" account of a party's own finances is not binding upon the court. However, this does not debar a court from arriving at that party's true financial state (Bizzarro v. Bizzarro, 106 A.D.2d 690, 692, 484 N.Y.S.2d 144; Matter of Vetrano v. Calvey, 102 A.D.2d 932, 477 N.Y.S.2d 522). Here, Trial Term did not find plaintiff's net worth statement patently unbelievable, but merely that she had miscalculated certain identifiable expenditures, particularly mortgage and tax payments, food, clothing, laund and dry cleaning expenses, and the needs of a daughter by a prior marriage, who it is undisputed defendant was not obligated to support. Since the data furnished, as adjusted by Trial Term, allowed for a proper analysis of plaintiff's finances, the court quite correctly refused to disregard it.

On the issue of maintenance, defendant contends that the award of $110 per week until he retires or plaintiff remarries is not only unnecessary, but excessive both in amount and in the period of time embraced. Given the standard of living the parties enjoyed prior to their divorce, the substantial disparity between defendant's annual income, as a sales engineer with General Electric Company, of $37,878.36 and plaintiff's annual income, as a clerk with the State of New York, of $9,824, and the necessity of p...