Smith v. Smith

• Decision Date: 23 April 1998
• Citation: 249 A.D.2d 813,671 N.Y.S.2d 829
• Parties: , 1998 N.Y. Slip Op. 3770 Josephine SMITH, Respondent, v. Thomas F. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 829

671 N.Y.S.2d 829

249 A.D.2d 813, 1998 N.Y. Slip Op. 3770

Josephine SMITH, Respondent, v. Thomas F. SMITH, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 23, 1998.

Blatchly & Simonson (Bruce D. Blatchly, of counsel), New Paltz, for appellant.

Edward J. Carroll (Beatrice Havranek, of counsel), Kingston, for respondent.

Before MIKOLL, J.P., and CREW, YESAWICH, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the Supreme Court (Vogt, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered February 13, 1997 in Ulster County, upon a decision of the court.

The parties were married in November 1970. At the time plaintiff commenced this divorce action in October 1995, defendant had been employed full time by Central Hudson Gas & Electric Company for 11 years earning $48,474 and plaintiff had been employed part time for six years as a secretary earning $5,752. Both parties were in their mid-40s. During the marriage, plaintiff held various part-time jobs and had obtained an Associate's degree in human services from a local community college. Their only child is emancipated. Although plaintiff allegedly experienced bouts of depression from the stress of the marriage and defendant was diagnosed with Crohn's Disease in 1979, both were otherwise in good health at the time of the trial.

Notwithstanding its finding that plaintiff "is capable of generating considerably more income than that derived from her present position" and that she made no "concerted effort" to seek full-time employment, Supreme Court awarded plaintiff spousal maintenance in the amount of $250 per week for four years and $150 per week thereafter until defendant retires or loses his job. In response to defendant's contention that Supreme Court erred in this regard, we note that this court's authority is as broad as Supreme Court's in resolving questions of maintenance (see, e.g., Boughton v. Boughton, 239 A.D.2d 935, 936, 659 N.Y.S.2d 607, 608) and, after reviewing the record, we disagree with the court's resolution in only one respect. While the court appropriately awarded plaintiff $250 weekly for four years, the maintenance thereafter should have been more limited in its duration; to wit, $150 for an additional five years only (see, Hapeman v. Hapeman, 229 A.D.2d 807, 810-811, 646 N.Y.S.2d 583).

Indeed, with respect to plaintiff's future earning capacity and ability to become self-supporting, Supreme Court itself found, and the record amply supports, that plaintiff is employable and the primary impediment to obtaining full-time employment is her failure to make any real efforts to obtain same (see, Domestic Relations Law § 236[B][6][a][4] ). While the length of the parties' marriage was significant (see, Domestic Relations Law § 236[B][6][a][2] ), the record reveals a modest preseparation standard of living (see, Hartog v. Hartog, 85 N.Y.2d 36, 51, 623 N.Y.S.2d 537, 647 N.E.2d 749). Defendant's salary is currently significantly higher than plaintiff's salary, but he is responsible for all carrying charges on the marital residence, two thirds of the parties' credit card debt and plaintiff's health insurance premiums for three years (see, Domestic Relations Law § 236[B][6][a][1], [11] ). Significantly, plaintiff was only 44 years old when the action was commenced and in good health (see, Domestic Relations Law § 236[B][6][a][2] ). Moreover, she has prior work experience, including significant secretarial training, procured an Associate's degree during the marriage, has only one child now emancipated and will net approximately $40,000 (tax free) from the sale of the marital residence (see, Domestic Relations Law § 236[B][6][a][1], [3], [4], [6], [7] ). Noting that the function of maintenance is to allow the recipient spouse "an opportunity to achieve [economic] independence" (O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712) and the duration of such an award should be that period of time reasonably necessary to allow that spouse to...