Robinson v. Robinson

• Decision Date: 01 October 1990
• Citation: 166 A.D.2d 428,560 N.Y.S.2d 665
• Parties: Jacqueline ROBINSON, Respondent, v. Edgar ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 665

560 N.Y.S.2d 665

166 A.D.2d 428

Jacqueline ROBINSON, Respondent, v. Edgar ROBINSON, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 1, 1990.

Emanuel Thebner, White Plains (Robert I. Gruber, of counsel), for appellant.

William E. Bandon, P.C., White Plains (Christopher A. Tiso and William E. Bandon, of counsel), for respondent.

Before EIBER, J.P., and SULLIVAN, BALLETTA and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from stated portions of a judgment of the Supreme Court, Westchester County (Donovan, J.), entered December 18, 1989, which, inter alia, awarded the plaintiff wife (1) $21,069.40 in support arrears, (2) $18,500 as her equitable share of the appreciated value of the defendant's condominium and (3) $44,797 in counsel fees, after a nonjury trial.

ORDERED that the judgment is modified, on the law, by (1) deleting the fourth decretal paragraph thereof which directed the defendant husband to pay support arrears in the sum of $21,069.40 "less any and all credits for sums paid to date", and (2) deleting the tenth decretal paragraph thereof, which directed the defendant husband to pay "all outstanding medical, surgical, pharmaceutical, dental, and other health care expenses" of the plaintiff wife and the parties' two children; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff wife, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and determination as to the net amount of support arrears due and owing to the plaintiff wife and the amount of medical, surgical, pharmaceutical, dental and other health care expenses of the plaintiff wife and the parties' two children which were not reimbursed from other sources.

The plaintiff wife, a dentist, and the defendant husband, an engineer, were married on June 20, 1982. In December 1985 the plaintiff, while engaged in the practice of clinical dentistry, suffered a disabling injury to her neck, as a result of which she is unable to resume full-time practice as a clinical dentist. The record further establishes that in August of 1986 the plaintiff, who was then pregnant with the parties' second child, fled the marital residence with their elder son and sought refuge in a shelter for victims of domestic violence. At the time of trial, the plaintiff and the parties' children were residing at a welfare motel and were subsisting on the plaintiff's disability benefits and a court-ordered pendente lite support award of $450 per month.

At issue on appeal is the propriety of several provisions of the judgment of divorce which pertain to the defendant's financial obligations to the plaintiff. Following a bitterly contested bench trial, the court determined, inter alia, that the plaintiff was entitled to recover counsel fees in the sum of $44,797, a distributive award of $18,500 representing her equitable share of the appreciated value of the defendant's condominium as well as $21,069.40 in support arrears "less any and all credits for sums paid to date". In addition to the foregoing, the court directed that the defendant pay the sum of $232.23 per week as child support and the sum of $105.95 per week as maintenance for a period of four years. The defendant was also directed to pay "all outstanding medical, surgical, pharmaceutical, dental and other health care expenses" incurred by the plaintiff and the parties' children.

With reference to the award of counsel fees, we find that the trial court did not improvidently exercise its discretion in requiring the defendant to pay the sum of $44,797 toward the plaintiff's counsel fees since the record establishes that the defendant is better equipped financially to bear the costs of the fees (see, Hackett v. Hackett, 147 A.D.2d 611, 538 N.Y.S.2d 20). The testimony adduced at trial reveals that the defendant was steadily employed and resided in a condominium while the plaintiff and the children languished in a welfare motel, subsisting on her disability benefits and the court-ordered pendente lite support award. The record, moreover, establishes that the defendant unnecessarily protracted the instant litigation, and as a result, was required to expend in excess of $70,000 for the cost of his own legal representation (see, Brennen v. Brennen, 148 A.D.2d 487, 538 N.Y.S.2d 835; Rados v. Rados, 133 A.D.2d 536, 519 N.Y.S.2d 906; Schussler v. Schussler, 109 A.D.2d 875, 487 N.Y.S.2d 67). Under the circumstances, the counsel fee award of $44,797 in favor of the plaintiff cannot be deemed unfair or excessive.

Although the defendant additionally contends that a hearing should have been conducted as to the items comprising the plaintiff's request for counsel fees, we note that this issue is not only unpreserved for appellate review (see, Gross v. Gross, 160 A.D.2d 976, 554 N.Y.S.2d 699; Janousek v. Janousek, 108 A.D.2d 782, 485 N.Y.S.2d 305; Lynch v. Lynch, 97 A.D.2d 814, 468 N.Y.S.2d 686), but is, in any event, devoid of merit since the plaintiff's attorney carefully documented each of the charges listed in his affirmation of services.

Equally unavailing is the defendant's contention that the trial court erroneously awarded the plaintiff the sum of $18,500, which represents the plaintiff's equitable share of the appreciated value of the defendant's condominium. Domestic Relations Law § 236(B)(1)(d)(3) defines separate property as property acquired in exchange for or the increase in value of separate property "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse " (emphasis supplied). The statute, therefore excludes from separate property any appreciation in the value of the separate property which is attributable, in some measure, to the contributions or efforts of the nontitled spouse, whether those efforts are direct or indirect. Therefore, in determining the equitable distribution of property resulting from such appreciation, the court must consider "any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party" (Domestic Relations Law § 236[B][5][d][6]; see, Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15; Ryan v. Ryan, 123 A.D.2d 679, 506 N.Y.S.2d 977).

With reference to the facts at bar, the defendant testified that he purchased the subject condominium approximately 3 1/2 years prior to the marriage for the sum of $31,500. According to the appraisal figure listed in the defendant's 1988 application for mortgage refinancing, the value of the condominium had increased to $96,500, an appreciation of $65,000. The record establishes that the plaintiff, prior to the onset of her disability, was employed, full time, as a clinical dentist and that she made financial contributions to the household expenses, often turning over her entire paycheck to the defendant. In addition, the testimony adduced at trial reveals that the plaintiff, during the parties' 4 1/2 year marriage, made significant and vital contributions as a homemaker, spouse and as the primary caretaker of the parties' infant children (see, Mele v. Mele, 152 A.D.2d 685, 544 N.Y.S.2d 25; Rider v. Rider, 141 A.D.2d 1004, 531 N.Y.S.2d 44; Clerk v. Clerk, 132 A.D.2d 456, 517 N.Y.S.2d 512). Unlike the situation in cases such as Mahlab v. Mahlab, 143 A.D.2d 116, 531 N.Y.S.2d 580, Lisetza v. Lisetza, 135 A.D.2d 20, 523 N.Y.S.2d 632, and Romano v. Romano, 139 A.D.2d 979, 530 N.Y.S.2d 155, the record at bar sufficiently demonstrates that the plaintiff's monetary and non-monetary contributions to the marriage and household justified the distributive award of $18,500 since the fruits of her labor, time and effort may be said to have contributed to the appreciation of the value of the defendant's condominium (see, Price v. Price, supra ). We also note that the amount awarded as the plaintiff's equitable share of the appreciated value of the condominium was based on a fair assessment of the factors enumerated in Domestic Relations Law § 236(B)(5)(d), and need not be disturbed on appeal. Additionally, while Domestic Relations Law § 236(B)(1)(b) permits the payment of distributive awards in installments, we note there is no need to modify the lump-sum award of $18,500 since the defendant has conceded that his equitable interest in the condominium exceeds this amount.

We find, however, that the provisions of the judgment which directed the defendant to pay (1) arrears in the sum of $21,069.40 "less any and all credits for sums paid to date" and (2) "all outstanding medical, surgical, pharmaceutical, dental and other health care expenses" of the plaintiff and the children must be deleted and that the issue of support arrears and outstanding medical expenses must be remitted to the Supreme Court for a hearing and determination as to the precise amounts that are due and owing (see, Megally v. Megally, 142 A.D.2d 721, 531 N.Y.S.2d 301; Keehn v. Keehn, 137 A.D.2d 493, 524 N.Y.S.2d 238; Scheer v. Scheer, 130 A.D.2d 479, 515 N.Y.S.2d 61).

We have examined the defendant's remaining contentions, including his challenge to the maintenance, child support and pension provisions, and find them to be without merit.

EIBER, J.P., and SULLIVAN and MILLER, JJ., concur.

BALLETTA, J., concurs in part and dissents in part, with the following memorandum:

The plaintiff acknowledges that the condominium in which the parties lived was purchased prior to the marriage by the defendant from his separate property. The residence was originally purchased for $31,500 and had risen to a value of $96,500 in approximately 10...