Roma v. Roma

• Decision Date: 02 June 2016
• Parties: Jennifer L. ROMA, Respondent–Appellant, v. Renato ROMA, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1242
32 N.Y.S.3d 703
2016 N.Y. Slip Op. 04274

Jennifer L. ROMA, Respondent–Appellant,
v.
Renato ROMA, Appellant–Respondent.

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

June 2, 2016.

32 N.Y.S.3d 704

Levene Gouldin & Thompson, LLP, Vestal (Philip C. Johnson of counsel), for appellant-respondent.

Robert C. Kilmer, Binghamton, for respondent-appellant.

Allen E. Stone Jr., Vestal, attorney for the child.

Before: PETERS, P.J., LAHTINEN, GARRY, CLARK and MULVEY, JJ.

LAHTINEN, J.

140 A.D.3d 1242

Cross appeal from an amended judgment of the Supreme Court (Pines, J.), entered July 21, 2014 in Broome County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter

140 A.D.3d 1243

the husband) married in 1991 and have two children (born in 1994 and 2000). The wife commenced this action in January 2013 and, after the parties stipulated to a ground for divorce, a nonjury trial ensued. The trial evidence revealed that, during most of their marriage, the wife was the primary wage earner, and her gross income as a program manager in 2012 was $105,437, whereas the husband earned $35,382 that year in the seasonal landscaping business that he

32 N.Y.S.3d 705

has operated for many years. Supreme Court rendered a written decision in which, among other things, it: granted the parties joint legal custody with the wife having primary physical custody of the child still living at home; distributed the marital property-including the value of the marital residence, the wife's defined pension plan, her 401K account and each party's individual retirement accounts (hereinafter IRAs); directed the wife to pay maintenance in the amount of $866 per month for two years; ordered the husband to pay weekly child support of $225 plus 35% of unreimbursed medical costs; and denied the husband's request for counsel fees. An amended judgment was thereafter entered. The husband appeals and the wife cross-appeals.

Both parties contest aspects of the equitable distribution award. “It is well established that equitable distribution of marital property does not necessarily mean equal, and Supreme Court has substantial discretion in fashioning an award of equitable distribution” (Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] [citation omitted]; see Musacchio v. Musacchio, 107 A.D.3d 1326, 1330, 968 N.Y.S.2d 664 [2013] ; Vertucci v. Vertucci, 103 A.D.3d 999, 1001, 962 N.Y.S.2d 382 [2013] ). The marital residence had a fair market value of $215,000 with a net equity of $131,000. Each party sought primary custody of the minor child and also the right to remain in the marital residence with the child (see Albertalli v. Albertalli, 124 A.D.3d 941, 943, 1 N.Y.S.3d 439 [2015] ). The wife prevailed on these issues and, accordingly, Supreme Court included among the options for compensating the husband for his equity share of the marital residence that the wife pay him his equity share of $65,000 when the youngest child turns 18 in mid–2018.¹ The husband contends that he should receive interest (at the statutory rate) on the deferred payment. The wife complains that the husband should have an offset for a $15,000 to $20,000 portion of a loan, which is solely in her name. Inasmuch as these amounts, although not exact, nonetheless substantially

140 A.D.3d 1244

offset, we find no abuse of discretion in Supreme Court's resolution of these...