Ropiecki v. Ropiecki

• Decision Date: 03 April 2012
• Parties: Linda ROPIECKI, respondent, v. Gary ROPIECKI, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02475

94 A.D.3d 734

941 N.Y.S.2d 650

Linda ROPIECKI, respondent,

v.Gary ROPIECKI, appellant.

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

April 3, 2012.

Mark D. Stern, Goshen, N.Y., for appellant.

Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (Justin E. Kimple of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and JEFFREY A. COHEN, JJ.

In an action for a divorce and ancillary relief, the defendant appeals from (1) a decision of the Supreme Court, Orange County (Ritter, J.), dated May 27, 2010, made after a nonjury trial, (2) an order of the same court dated September 9, 2010, and (3) stated portions of a judgment of the same court, also dated September 9, 2010, which, upon the decision and the order, inter alia, directed that his maintenance obligation be retroactive to the date the action was commenced, awarded him credit toward maintenance arrears for voluntary payments he had made in the sum of only $180,179.28, awarded the plaintiff 100% of the equity in the marital home, awarded the plaintiff a portion of his bonus in the sum of $200,000 as part of the equitable distribution of marital assets, directed him to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the sum of $1,500,000, and directed him to pay 90% of all of the plaintiff's unreimbursed health care expenses.

ORDERED that the appeals from the decision and the order are dismissed; and it is further,

ORDERED that the judgment is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff a portion of the defendant's bonus in the sum of $200,000 as part of the equitable distribution of marital assets, (2) by deleting the provision thereof directing the defendant to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the sum of $1,500,000, and substituting therefor a provision directing the defendant to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the sum of $1,200,000 until the plaintiff reaches the age of 65, and in the sum of $600,000 thereafter for as long as the defendant is obligated to pay maintenance, and (3) by deleting the provision thereof directing the defendant to pay 90% of all of the plaintiff's unreimbursed health care expenses and substituting therefor a provision directing the defendant to pay 90% of all of the plaintiff's unreimbursed health care expenses for as long as he is obligated to pay maintenance; as so modified, the judgment is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith, and for the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the decision is dismissed, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718). In addition, the appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

Contrary to the defendant's contentions, the Supreme Court properly exercised its discretion in directing that his maintenance obligations be retroactive to the date the action was commenced ( see Domestic Relations Law § 236[B][6][a]; Schiffer v. Schiffer, 21 A.D.3d 889, 890, 800 N.Y.S.2d 752), and properly awarded the defendant credit toward the maintenance arrears for voluntary payments he had made in the sum of only $180,179.28. The defendant is not entitled to any further credit for voluntary payments, as the expenses from his net worth statement included payments made on behalf of himself and his emancipated children, payments for which the wife was not responsible ( see Horne v. Horne, 22 N.Y.2d 219, 224, 292 N.Y.S.2d 411, 239 N.E.2d 348; LiGreci v. LiGreci, 87 A.D.3d 722, 724, 929 N.Y.S.2d 253). Moreover, the defendant's contention that the Supreme Court improperly awarded the plaintiff maintenance until she reaches the age of 65 or the defendant retires, whichever is later, is not properly before this Court given the limited scope of the defendant's notice of appeal ( see CPLR 5515[1]; Hatem v. Hatem, 83 A.D.3d 663, 664, 919 N.Y.S.2d 901; City of Mount Vernon v. Mount Vernon Hous. Auth., 235 A.D.2d 516, 516–517, 652 N.Y.S.2d 771).

“Equitable distribution does not necessarily mean equal distribution” ( Arrigo v. Arrigo, 38 A.D.3d 807, 807, 834 N.Y.S.2d 534). Here, the Supreme Court properly considered the relevant statutory factors in fashioning the distribution ( id. at 807, 834 N.Y.S.2d 534; see Shapiro v. Shapiro, 35 A.D.3d 585, 587, 829 N.Y.S.2d 114). The parties were married for 27 years, and the plaintiff's very limited earning potential is a result of her staying home and taking care of the parties' four children, including their daughter, who suffers from Retts Syndrome and is severely disabled. The defendant, by contrast, acquired considerable earning potential....