Sawin v. Sawin

• Decision Date: 06 May 2015
• Docket Number: 2013-05543, 2013-05546
• Citation: 128 A.D.3d 663,2015 N.Y. Slip Op. 03819,7 N.Y.S.3d 589
• Parties: Barbara SAWIN, respondent, v. Scott SAWIN, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 663

7 N.Y.S.3d 589

2015 N.Y. Slip Op. 03819

Barbara SAWIN, respondent

v.Scott SAWIN, appellant.

2013-05543, 2013-05546

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

May 6, 2015.

Advocate & Lichtenstein, LLP, New York, N.Y. (Jason A. Advocate of counsel; John H. Hersh, former counsel on the brief), for appellant.

Stephen M. Santoro, Sr., P.C., Carmel, N.Y. (Sarah R. Scigliano of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Opinion

In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of the Supreme Court, Putnam County (Nicolai, J.), dated April 12, 2013, which granted his motion, in effect, pursuant to CPLR 4404(b) to set aside a decision of the same court dated October 22, 2012, made after a nonjury trial, only to the extent of reducing the plaintiff's credit for marital funds used to improve his separate real property in Hartsdale from the sum of $14,500 to the sum of $10,053, and otherwise denied the motion, and (2), as limited by his brief, from stated portions of a judgment of the same court, also dated April 12, 2013, which, inter alia, upon the decision and the order, awarded the plaintiff maintenance in the sum of $2,000 per month for a period of eight years, directed him to pay child support in the sum of $2,220.33 per month, awarded the plaintiff a pendente lite attorney's fee in the sum of $10,000, and directed equitable distribution of the marital property and debts.

ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the judgment as awarded the plaintiff a pendente lite attorney's fee in the sum of $10,000 is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the law and the facts, (1) by deleting the provision thereof awarding the plaintiff a credit in the sum of $8,000 representing one-half of certain credit card debt, (2) by deleting the provision thereof awarding the plaintiff a credit in the sum of $6,600 based upon a loan she took out against her 401(k) account, (3) by deleting the provision thereof awarding the plaintiff a credit in the sum of $5,940 for payments toward the parties' oldest child's college expenses, and substituting therefor a provision awarding the plaintiff a credit in the sum of $1,200, (4) by deleting the provision thereof awarding the plaintiff a credit in the sum of $6,750 representing one-half of marital funds allegedly used to pay real estate taxes on the defendant's separate real property in Hartsdale, (5) by deleting the provision thereof awarding the plaintiff a credit in the sum of $6,000 representing one-half of marital funds allegedly used to pay the defendant's attorney's fees, (6) by deleting the provision thereof awarding the plaintiff the sum of $1,250 representing one-half of the parties' 2011 tax refund, and (7) by deleting the provision thereof awarding the plaintiff a credit in the sum of $1,800 representing one-half of rental income received from certain marital property in South Carolina, and substituting therefor a provision awarding her a credit in the sum of $350; as so modified, the judgment is affirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith, and for the entry of an appropriate amended judgment thereafter.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the 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 (see CPLR 5501[a] [1] ).

The parties were married in 1988 and have three children in common, born in 1992, 1994, and 1997, respectively. During the marriage, the defendant worked as a firefighter, and in 2011, he earned approximately $122,500. The plaintiff stopped working full-time after the birth of the parties' second child in 1994. In 2004, she began working part-time as a real estate agent, earning approximately $15,000 in 2010 and $23,000 in 2011. After the parties' separation in April 2010, the defendant moved to a house in Hartsdale that he had inherited from his parents. In December 2010, the plaintiff commenced this matrimonial action seeking, among other things, child support, maintenance, and equitable distribution. At the time of trial in February 2012, the parties' oldest child was in college and resided on campus during the school year.

The Supreme Court providently awarded maintenance to the plaintiff for a period of eight years, and the amount of the award was not excessive. “It is well established that, ‘[a]s a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court’ ” (Myers v. Myers, 118 A.D.3d 1315, 1315, 987 N.Y.S.2d 766, quoting Frost v. Frost, 49 A.D.3d 1150, 1150–1151, 854 N.Y.S.2d 621 ; see McCarthy v. McCarthy, 57 A.D.3d 1481, 1481–1482, 870 N.Y.S.2d 669 ). Inasmuch as the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6)(a), the award of maintenance was not improvident (see Marley v. Marley, 106 A.D.3d 961, 962, 965 N.Y.S.2d 375 ; McCarthy v. McCarthy, 57 A.D.3d at 1481–1482, 870 N.Y.S.2d 669 ; Meccariello v. Meccariello, 46 A.D.3d 640, 641–642, 847 N.Y.S.2d 618 ). Moreover, taking into consideration the financial circumstances of the parties, neither the duration nor the amount of maintenance was excessive (see Schmitt v. Schmitt, 107 A.D.3d 1529, 1529, 968 N.Y.S.2d 284 ; McCarthy v. McCarthy, 57 A.D.3d at 1482, 870 N.Y.S.2d 669 ; cf. Perry v. Perry, 101 A.D.3d 1762, 1762–1763, 957 N.Y.S.2d 798 ).

The Supreme Court properly directed the defendant to pay a proportionate share of the children's college expenses as part of the child support award (see Domestic Relations Law § 240[1–b][c][7] ; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 628 N.Y.S.2d 10, 651 N.E.2d 878 ). However, the child support award should have included a provision either directing that, when a child is living away from home while attending college, the defendant's monthly child support obligation shall be reduced, or awarding the defendant a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months (see Kim v. Schiller, 112 A.D.3d 671, 676, 978 N.Y.S.2d 229 ; Matter of Levy v. Levy, 52 A.D.3d 717, 718–719, 860 N.Y.S.2d 617 ; Jablonski v. Jablonski, 275 A.D.2d 692, 693, 713 N.Y.S.2d 184 ; Reinisch v. Reinisch, 226 A.D.2d 615, 616, 641 N.Y.S.2d 393 ). Accordingly, the matter must be remitted to the Supreme Court, Putnam County, for a determination of the defendant's child support obligation for any time periods that one or more of the parties' children are living away from home at college (see Matter of Levy v. Levy, 52 A.D.3d at 719, 860 N.Y.S.2d 617 ).

The Supreme Court erred in awarding the plaintiff a credit in the sum of $8,000 representing one-half of certain credit card debt. At trial, the plaintiff testified that she incurred credit card debt in the amount of $16,000 over a two-year period starting approximately six months before this action was commenced. Although credit card debt incurred prior to the commencement of a matrimonial action constitutes marital debt and should be equally shared by the parties (see Lamparillo v. Lamparillo, 116 A.D.3d 924, 926, 985 N.Y.S.2d 101; Rodriguez v. Rodriguez, 70 A.D.3d 799, 894 N.Y.S.2d 147 ), debt incurred after the commencement of a matrimonial action typically is the responsibility of the party who incurred the debt (see Epstein v. Messner, 73 A.D.3d 843, 845, 900 N.Y.S.2d 454 ; Opperisano v. Opperisano, 35 A.D.3d 686, 688, 827 N.Y.S.2d 226 ; Prince v. Prince, 247 A.D.2d 457, 668 N.Y.S.2d 670 ). Nonetheless, debt incurred in connection with household living expenses and clothing for the parties' children is debt that can be divided between the parties (see Epstein v. Messner, 73 A.D.3d at 845, 900 N.Y.S.2d 454 ; Bogdan v. Bogdan, 260 A.D.2d 521, 522, 688 N.Y.S.2d 255 ), even if incurred after the commencement of such an action (see Alleva v. Alleva, 112 A.D.3d 567, 569, 977 N.Y.S.2d 267 ). However, debt incurred for the purchase of personal items for one of the parties cannot be so divided (see Preisner v. Preisner, 47 A.D.3d 695, 696, 850 N.Y.S.2d 492 ). Here, the court noted that the expenses reflected in the credit card records were for food and clothing for the children and clothes for the plaintiff. Since the record before us does not show what portion of the debt was incurred prior to the commencement of this action, or the amount of that debt which was incurred to meet the plaintiff's personal, rather than marital, obligations, the matter must be remitted to the Supreme Court, Putnam County, to make those findings (see Bernholc v. Bornstein, 72 A.D.3d 625, 628, 898 N.Y.S.2d 228 ; Preisner v. Preisner, 47 A.D.3d at 696, 850 N.Y.S.2d 492 ; Opperisano v. Opperisano, 35 A.D.3d at 688, 827 N.Y.S.2d 226 ), and make an award, if appropriate, consistent with such findings.

The Supreme Court also erred in determining that the plaintiff was entitled to a credit based upon a loan she took out against her 401(k) account. The court equitably distributed the 401(k) account so that each party would receive 50% of the account balance as of the date of the commencement of this action, plus or minus gains or losses until the date of segregation. The...