R.S. v. B.L.

• Decision Date: 22 June 2017
• Citation: 57 N.Y.S.3d 146,151 A.D.3d 609
• Parties: R.S., Plaintiff–Respondent, v. B.L., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 609

57 N.Y.S.3d 146

R.S., Plaintiff–Respondent,

v.B.L., Defendant–Appellant.

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

June 22, 2017.

Law Offices of Annette G. Hasapidis, White Plains (Annette G. Hasapidis of counsel), for appellant.

Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, New York ( Robert Stephan Cohen of counsel), and Michele A. Katz PLLC, New York (Michele A. Katz of counsel), for respondent.

SWEENY, J.P., MAZZARELLI, MOSKOWITZ, MANZANET–DANIELS, KAPNICK, JJ.

Judgment of divorce, Supreme Court, New York County (Ellen Gesmer, J.), entered April 15, 2015, and bringing up for review an order, same court and Justice, entered on or about January 26, 2015, which, after a nonjury trial, resolved the parties' financial issues ancillary to the divorce, unanimously affirmed, without costs.

The parties were married in 1987, and there are two children of the marriage, born in 1994 and 1996, respectively. On or about January 4, 2012, the husband commenced this action for a divorce and ancillary relief. After a 21–day nonjury financial trial, the Supreme Court, inter alia, found that the parties' nonretirement assets had precipitously declined by approximately $1.6 million, largely due to the wife's lavish spending postcommencement and the parties' legal fees. The court, inter alia, distributed the parties' nonretirement assets, including real property and the husband's partnership interest at his law firm, 35% to the wife and 65% to the husband. The parties' retirement assets, including a lifetime annuity payable upon the husband's retirement, were distributed equally. The wife was awarded declining maintenance for eight years, taking into account her imputed income, so as to provide her with $35,000 of taxable income per month. As for child support, the court applied a cap on combined parental income of $350,000, with the wife paying a pro rata share of 17% and the husband paying 83%, except for educational expenses, which were apportioned 35% to the wife and 65% to the husband.

Contrary to the wife's contention, the court properly imputed income to her based on the testimony and report of the husband's vocational expert. Although the Ivy–League educated wife left full-time work as a lawyer in 1999 to raise the parties' children, she nevertheless maintained her law license, continued to engage in professional activities, and did consulting work. Prior to commencement of the action, she was accepted to the Scheinman Institute on Conflict Resolution at Cornell University for an arbitration program and was appointed as an arbitrator for the United Federation of Teachers and New York City Department of Education § 3020–a Hearing Panel, where she rendered a 90–page decision upheld by the Supreme Court. Moreover, the court properly precluded the wife, who suffered from three psychiatric hospitalizations in the year preceding the trial, from introducing testimony from a mental health evaluator about her ability to work. The wife waived such expert testimony pursuant to a so-ordered stipulation entered into by the parties (see Alveranga–Duran v. New Whitehall Apts., L.L.C., 40 A.D.3d 287, 836 N.Y.S.2d 24 [1st Dept.2007] ; see generally Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ). Accordingly, there is no basis to disturb the court's award of maintenance to the wife.

Based on the foregoing, the court properly imputed income to the wife in determining her pro rata share of child support. As well, the court providently exercised its discretion in applying a combined income cap of $350,000 based on the children's actual needs, rather than the husband's income (see Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept.2006] ).

Turning to equitable distribution, the court providently exercised its discretion in distributing the parties' total nonretirement marital assets, including the values of the husband's partnership interest...