Rubin v. Rubin

• Decision Date: 13 November 1984
• Parties: Mildred RUBIN, Respondent-Appellant, v. Irwin S. RUBIN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 172

481 N.Y.S.2d 172

105 A.D.2d 736

Mildred RUBIN, Respondent-Appellant, v. Irwin S. RUBIN, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 13, 1984.

Gatz, Arnoff & Czygier, Riverhead (Donald P. Colleton and Howard B. Prossnitz, Chicago, Ill., of counsel), and Abramson & Fox, Chicago, Ill., for appellant-respondent (one brief filed).

Lawrence & Lawrence, Mineola (Jerome A. Lawrence, Mineola, of counsel), for respondent-appellant.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Nassau County, dated April 19, 1983, as (1) ordered him to pay the plaintiff wife maintenance in the amount of $550 per week until such time as she remarries or dies, (2) provided that "plaintiff shall retain her full one-half interest of the marital premises * * * free of any claim by defendant" as separate property not subject to equitable distribution, and (3) directed him to pay the sum of $7,500 as and for plaintiff's counsel fees and disbursements, and the plaintiff wife cross-appeals, as limited by her notice of appeal and brief, from so much of the same judgment as (1) provided that defendant's interest in a closely held corporation named Trion Industries, Inc., and the pension plans he obtained through that corporation, are his separate property, not subject to equitable distribution and (2) awarded her only $7,500 in counsel fees and disbursements.

Judgment modified, on the law and the facts, by (1) adding to the fourth decretal paragraph thereof a provision directing that the marital residence be sold, with the net proceeds thereof to be divided equally between the parties, after the satisfaction of the mortgage and the payment of all applicable expenses, including closing costs; (2) deleting from the fifth decretal paragraph thereof the words "and defendant's Pension Plan therein", and (3) deleting the seventh decretal paragraph thereof and substituting therefore a provision requiring defendant to pay plaintiff maintenance in the sum of $475 per week, by check or money order on the Friday of each week, for a period of five years after the date of entry of the judgment of divorce, or until she sooner remarries or dies. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. The matter is remitted to Special Term for further proceedings in accordance herewith for a determination concerning the valuation and equitable distribution of defendant's interests in his pension plans from Trion Industries, Inc. which accrued during the parties' marriage prior to the commencement of the matrimonial action. The findings of fact by Special Term are affirmed, except where specifically indicated otherwise herein. The time within which the marital residence shall be sold in accordance with the fourth decretal paragraph of the judgment, as modified, is extended until one year after the date of the order to be made hereon.

The parties were married on December 17, 1973. This was the second marriage for both parties and they each had custody of two children from their prior marriages, all of whom moved into the marital residence located at 57 Wensley Drive in Great Neck, New York. At the time of the marriage, the youngest of the children of the parties was 10 years of age. No children were born of this marriage. Plaintiff commenced this action for divorce by service of a summons and verified complaint on or about November 11, 1980, when the parties had been married just under seven years. The action was tried before Justice HENDERSON W. MORRISON of the Supreme Court, Nassau County, from January 24 to February 1, 1983. In March, 1983, when Justice MORRISON issued his decision after the trial, defendant was 52 years of age and plaintiff was 45.

Under the circumstances presented in this case, we conclude that the award of maintenance to plaintiff in the amount of $550 per week terminable only upon her remarriage, or death, constituted an abuse of discretion. The record of the lengthy trial contains sufficient evidence concerning the circumstances of the parties to enable this court to exercise its authority to make new findings of fact on the issue of maintenance, in accordance with the factors outlined in section 236 (part B, subd. 6, par. a) of the Domestic Relations Law, in lieu of remitting the matter to Special Term for this purpose (see Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829, revg. 96 A.D.2d 831, 465 N.Y.S.2d 581; Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494, 474 N.Y.S.2d 699, 463 N.E.2d 15; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). We conclude, for the reasons discussed below, that the award of maintenance to plaintiff should be reduced to the sum of $475 per week and limited in duration to five years after the date of entry of the judgment of divorce, or until she sooner remarries or dies. We take note of the fact that the parties agreed to a reduction in the amount of maintenance to $425 per week pending the determination of this appeal in a stipulation of settlement, entered into in open court on September 13, 1983, after plaintiff obtained an order to show cause to hold defendant in contempt for failing to comply with the original maintenance award in the judgment of divorce.

Special Term failed to give sufficient weight to the following factors in formulating the amount and duration of the maintenance award: the short duration of this childless marriage, the reduction in defendant's income from his business in the years immediately following the commencement of the matrimonial action, the absence of minor children in the homes of the respective parties, plaintiff's ability to earn money to support herself after an initial period of adjustment and retraining and her lack of significant monetary or nonmonetary contributions to the parties' household or to defendant's business career during the marriage (see Domestic Relations Law, § 236, part B, subd. 6, par. a, cls. see, also, Duffy v. Duffy, supra ). The evidence adduced at trial indicates that defendant's gross annual income from Trion Industries, Inc., the closely held corporation in which he and another principal each own half of the shares of capital stock, declined from $110,000 in 1980, the year in which the matrimonial action was commenced, to $88,864 in 1981 and $70,002.03 in 1982. Special Term found that, at the time of trial, defendant's income from the business remained at the level of $70,000 per year. The decline in defendant's income is attributable, in part, to an agreement between Trion Industries, Inc. and the Pennsylvania Industrial Development Authority, which required, as a condition for a low-interest loan to enable the corporation to acquire a new building in Wilkes-Barre, Pennsylvania, that the corporation's two principals limit their combined salaries to $140,000, with no increases in salary until the business attains a certain level of net income. The maintenance award of $550 per week, which represents $28,600 annually, is excessive, as it will consume over 40% of defendant's current gross income and an even larger percentage of his current net income, which should provide the basis for establishing the level of the maintenance award (see Dobbins v. Dobbins, 59 A.D.2d 548, 397 N.Y.S.2d 412; Somach v. Somach, 49 A.D.2d 592, 370 N.Y.S.2d 142; Scheinkman, 1981 Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law, C236B:20, 1983-1984 Pocket Part, p. 165). There is no evidence that defendant is deliberately concealing any of his income or assets.

Special Term correctly concluded that plaintiff contributed no money to the support of the household, except the child support payments she received from her first husband. Her nonmonetary contributions as a parent and homemaker also appear to have been minimal, according to the testimony of defendant and his daughter Lita, which we credit (see Domestic Relations Law, § 236, part B, subd. 6, par. a, cl. ). Special Term correctly found that plaintiff devoted a great deal of her time and energies during the marriage to the leisure pursuits of bridge and tennis. We also agree with the finding of Special Term that plaintiff's alleged medical problems do not result in any disabilities which would preclude her from obtaining employment to contribute toward her own support (see Domestic Relations Law, § 236, part B, subd. 6, par. a, cl. ). Special Term failed, however, to give sufficient weight to the above factors when it formulated the maintenance award. Additionally, we conclude, based upon the...