Soule v. Soule

CourtNew York Supreme Court Appellate Division
Writing for the CourtCREW
Citation676 N.Y.S.2d 701,252 A.D.2d 768
Decision Date16 July 1998
Parties, 1998 N.Y. Slip Op. 7055 C. David SOULE, Appellant-Respondent, v. Kim M. SOULE, Respondent-Appellant.

Page 701

676 N.Y.S.2d 701
252 A.D.2d 768, 1998 N.Y. Slip Op. 7055
C. David SOULE, Appellant-Respondent,
v.
Kim M. SOULE, Respondent-Appellant.
Supreme Court, Appellate Division,
Third Department.
July 16, 1998.

Page 702

Lester A. Sittler, Fly Creek, for appellant-respondent.

Vitanza, Shabus & Fertig (Thomas A. Vitanza of counsel), Norwich, for respondent-appellant.

Before: CARDONA, P.J., CREW, YESAWICH, SPAIN and GRAFFEO, JJ.

CREW, Justice.

Cross appeals from a judgment of the Supreme Court (Ingraham, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered June 16, 1997 in Otsego County, upon a decision of the court.

Plaintiff and defendant were married in August 1983 and have two children, born in 1984 and 1990. Following the parties' separation in January 1995, plaintiff and defendant executed a written agreement providing, inter alia, that they would maintain separate residences and share joint custody of the children. 1 Plaintiff thereafter commenced this action for divorce in October 1995 seeking, inter alia, equitable distribution of the parties' marital property. Defendant answered and counterclaimed for, among other things, custody of the parties' minor children.

At the conclusion of the bench trial that followed, Supreme Court awarded equitable distribution of the parties' marital property, which resulted in an award to defendant of $112,878 (consisting of $18,754 in assets already in her possession and a lump-sum award of $94,124). Additionally, Supreme Court ordered plaintiff to pay defendant $400 per week in maintenance until such time as defendant dies or remarries and awarded child support in the amount of $361 per

Page 703

week, with both payments retroactive to October 31, 1995. 2 In so doing, Supreme Court fixed plaintiff's maintenance and support arrears at $8,800 and $11,870, respectively, and also awarded defendant $3,000 in counsel fees. 3 These cross appeals by the parties ensued.

Initially, both plaintiff and defendant contend that Supreme Court erred with respect to its award of maintenance. Plaintiff, although not directly challenging the weekly sum awarded, contends that such maintenance should be of limited duration. Defendant, on the other hand, asserts that while a permanent award of maintenance is entirely appropriate, the weekly sum ordered by Supreme Court is inadequate to permit her to maintain her predivorce standard of living.

In our view, although the weekly sum fixed by Supreme Court is appropriate given, inter alia, the length of the marriage, the parties' respective incomes/earning capacities and the lifestyle that they enjoyed prior to their separation and divorce, we agree with plaintiff that permanent maintenance is not warranted under the circumstances present here. Even taking into consideration defendant's educational background (high school diploma) and prior employment experience (waitressing and tending bar), the record as a whole demonstrates that defendant has the capacity to become self-supporting.

At the time of trial, defendant was 37...

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3 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...v. Saget, 29 A.D.3d 437, 442 (1st Dep't 2006); Cambridge Assoc. v. Town of N. Salem,Page 7282 A.D.2d 702 (2d Dep't 2001); Soule v. Soule, 252 A.D.2d 768, 770-71 (3d Dep't 1998). See 30-40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333 (2d Dep't 2010); Gettner......
  • Hymowitz v. Hymowitz,
    • United States
    • New York Supreme Court Appellate Division
    • July 16, 2014
    ...455, affd.69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; Harrington v. Harrington, 300 A.D.2d 861, 864, 752 N.Y.S.2d 430; Soule v. Soule, 252 A.D.2d 768, 771, 676 N.Y.S.2d 701; [991 N.Y.S.2d 64]Heine v. Heine, 176 A.D.2d 77, 87, 580 N.Y.S.2d 231; Wegman v. Wegman, 123 A.D.2d 220, 234, 509 N......
  • M.G. v. D.G., No. 50/2013.
    • United States
    • United States State Supreme Court (New York)
    • October 6, 2016
    ...due to a general failure of proof on the issue. See Fu Kuo Hsu v. Hsuan Hung, 149 A.D.2d 405 (2d Dept.1989) ; See also, Soule v. Soule, 252 A.D.2d 768 (3rd Dept.1998).While Husband's attorney made a reference in her opening statement that he may request counsel fees as part of this trial, n......
3 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...v. Saget, 29 A.D.3d 437, 442 (1st Dep't 2006); Cambridge Assoc. v. Town of N. Salem,Page 7282 A.D.2d 702 (2d Dep't 2001); Soule v. Soule, 252 A.D.2d 768, 770-71 (3d Dep't 1998). See 30-40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333 (2d Dep't 2010); Gettner......
  • Hymowitz v. Hymowitz,
    • United States
    • New York Supreme Court Appellate Division
    • July 16, 2014
    ...455, affd.69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; Harrington v. Harrington, 300 A.D.2d 861, 864, 752 N.Y.S.2d 430; Soule v. Soule, 252 A.D.2d 768, 771, 676 N.Y.S.2d 701; [991 N.Y.S.2d 64]Heine v. Heine, 176 A.D.2d 77, 87, 580 N.Y.S.2d 231; Wegman v. Wegman, 123 A.D.2d 220, 234, 509 N......
  • M.G. v. D.G., No. 50/2013.
    • United States
    • United States State Supreme Court (New York)
    • October 6, 2016
    ...due to a general failure of proof on the issue. See Fu Kuo Hsu v. Hsuan Hung, 149 A.D.2d 405 (2d Dept.1989) ; See also, Soule v. Soule, 252 A.D.2d 768 (3rd Dept.1998).While Husband's attorney made a reference in her opening statement that he may request counsel fees as part of this trial, n......

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