Strohli v. Strohli

• Decision Date: 31 July 2019
• Docket Number: 2016–02121,Index No. 1364/13
• Parties: Mark STROHLI, Appellant-Respondent, v. Jessica STROHLI, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 938

107 N.Y.S.3d 324

Mark STROHLI, Appellant-Respondent,

v.Jessica STROHLI, Respondent-Appellant.

2016–02121

Index No. 1364/13

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

Argued—September 26, 2018

July 31, 2019

Montalbano, Condon & Frank, P.C., New City, N.Y. (Martin S. Butcher of counsel), for appellant-respondent.

Eric Ole Thorsen, New City, NY, for respondent-appellant.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, and the defendant cross-appeals, from stated portions of a judgment of divorce of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), entered December 30, 2015. The judgment of divorce, insofar as appealed from, upon an amended decision of the same court dated April 1, 2015, made after a nonjury trial, inter alia, (1) failed to deduct the annual amount of the plaintiff's maintenance payments from the plaintiff's income in calculating his child support obligation, (2) failed to direct that the plaintiff's maintenance payments terminate as provided for in Domestic Relations Law § 236(B)(1)(a), (3), in effect, directed the plaintiff to pay 100% of the cost of maintaining health insurance for the parties' children, (4) failed to direct the defendant to pay her percentage share of unreimbursed medical expenses, camp expenses, and private school tuition for the parties' children, (5) failed to distribute marital personal property, (6) failed to award the plaintiff a credit for (a) marital funds withdrawn from the parties' joint checking account by the defendant at or around the date of the commencement of the action, and (b) certain credit card expenses incurred by the defendant during the trial, (7) directed that marital debt be paid in proportion to the parties' income, (8) awarded the defendant possession of the marital residence until the youngest child attained the age of 18, (9) failed to award the plaintiff a credit against maintenance and child support arrears for (a) payments made by the plaintiff pursuant to a purported pendente lite order and (b) payments made voluntarily by the plaintiff during the pendency of the action, (10) failed to direct the defendant to pay expenses related to damages to a vehicle leased by the plaintiff and used by the defendant, and (11) failed to find the defendant in contempt for violating the parental access provisions of the purported pendente lite order. The judgment of divorce, insofar as cross-appealed from, inter alia, (1) failed to award the defendant arrears under the purported pendente lite order, (2) awarded the defendant maintenance in the sum of only $1,000 per month to be paid for only six years and child support in the sum of only $2,495.25 per month based on income imputed to the plaintiff in the amount of only $86,064 per year, and income imputed to the defendant in the amount of $31,200 per year, (3) directed that the marital assets be divided equally between the parties, (4) failed to direct that the defendant receive a credit for mortgage and home equity line of credit payments made after the parties' divorce, (5) failed to affirmatively allow the defendant to sell the marital residence, before the parties' youngest child attains the age of 18, (6) failed to award the defendant a credit for marital funds allegedly used by the plaintiff to pay pendente lite obligations, and (7) failed to direct the plaintiff to maintain life insurance.

ORDERED that the appeal from so much of the judgment of divorce as (1) failed to award the plaintiff a credit against maintenance and child support arrears for (a) payments made by the plaintiff pursuant to the purported pendente lite order and (b) payments made voluntarily by the plaintiff during the pendency of the action, and (2) failed to find the defendant in contempt for violating the parental access provisions of the purported pendente lite order is dismissed, without costs or disbursements; and it is further, ORDERED that the cross appeal from so much of the judgment of divorce as (1) failed to award the defendant arrears under the purported pendente lite order, and (2) failed to award the defendant a credit for marital funds allegedly used by the plaintiff to pay pendente lite obligations is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting from the eighth decretal paragraph thereof the provision directing the plaintiff to pay 79% of camp expenses, and substituting therefor a provision directing the plaintiff to pay 79%, and the defendant to pay 21%, of reasonable camp expenses for the children, required as and for child care in order for the defendant to be employed, (2) by adding to the eleventh decretal paragraph thereof, after the words "plaintiff shall pay defendant taxable maintenance in the sum of $12,000 per year in installments of $1,000 per month commencing on the date of the filing of the complaint for a period of six years," the words "or until the death of either party or the defendant's remarriage, whichever shall occur sooner," (3) by deleting from the twelfth decretal paragraph thereof the words "the proceeds [of the sale of the marital residence], after all costs of sale, shall be divided equally between the parties," and substituting therefor the words "the proceeds of the sale of the marital residence shall be divided equally, after deducting all costs of sale and after awarding the defendant a credit for (a) 50% of the difference between the principal balance of the mortgage as of December 22, 2015, and the amount due at closing, and (b) 50% of the payments she makes on the home equity line of credit from December 22, 2015, until the closing of sale," (4) by deleting from the thirteenth decretal paragraph thereof the words "[u]ntil such time as the sale and closing [of the Monsey, Hillburn, and Hyde Park investment properties], the parties shall pay all taxes, upkeep and maintenance costs as relates to their share of the property as follows: plaintiff shall pay 60% and the defendant shall pay 40% in proportion to their income ratio," and substituting therefor the words "until such time as the sale and closing of the Monsey and Hyde Park investment properties, the plaintiff shall pay 100% of the taxes, upkeep, and maintenance costs on the Monsey and Hyde Park investment properties, and the plaintiff shall receive a 50% credit from the proceeds of the sale of the Monsey and Hyde Park investment properties for the taxes and legitimate verified upkeep and maintenance costs paid by him; the defendant shall pay the taxes and legitimate verified upkeep and maintenance costs on the Hillburn investment property from the rental receipts, and any profit from the rental receipts shall be equally divided between the parties upon the sale of the Hillburn investment property," (5) by deleting from the fourteenth decretal paragraph thereof the words "all debts are presumed to be marital and shall be split by the parties in accordance with their respective incomes, with the plaintiff responsible for 79% and the defendant responsible for 21% of all outstanding debt," (6) by deleting the provision thereof, in effect, directing the plaintiff to pay 100% of the cost of maintaining health insurance for the parties' children, and substituting therefor a provision directing the plaintiff to pay 79% and the defendant to pay 21% of the cost of maintaining health insurance for the parties' children, (7) by adding a provision thereto directing the defendant to pay 21% of the private school tuition and 21% of the unreimbursed medical costs for the parties' children, (8) by adding a provision thereto directing the plaintiff to purchase life insurance naming the defendant as irrevocable beneficiary, in an amount sufficient to secure the plaintiff's maintenance and child support obligations, (9) by adding a provision thereto directing that, upon the defendant's consent, the parties may sell the marital residence before the parties' youngest child attains the age of 18, (10) by adding a provision thereto that the plaintiff is entitled to the following items of separate personal property: (a) silver items: three menorahs, six kiddush cups and matching plates, a large tray, a large fruit basket, a flower vase, and two single candlestick holders; and (b) the plaintiff's collections of baseball cards and comic books as they existed at the time of the commencement of the action, (11) by adding a provision thereto directing that the plaintiff is entitled to one-half of the family photographs, videos, and picture albums as they existed at the time of the commencement of the action, and (12) by adding a provision thereto awarding the plaintiff a credit in the amount of $19,400 for his 50% share of the marital funds that were withdrawn from the parties' joint checking account by the defendant, to be paid by the defendant from her share of the proceeds of the sale of the parties' real property; as so modified, the judgment of divorce is affirmed insofar as reviewed, without costs or disbursements.

The parties were married in 1992, and are the parents of five children, born in 1995, 1999, 2003, 2007, and 2010, respectively. This action for a divorce and ancillary relief was commenced in 2013. The plaintiff did not graduate high school, but obtained a real estate license when he was 18 that he never used and let lapse. He also obtained an emergency medical technician license from New Jersey. The plaintiff has a public insurance adjustor's license from Florida that allows him to work in New Jersey and Connecticut. Although the plaintiff had a home renovation license, he allowed it to lapse. The plaintiff's primary source of income over the years has been from real estate investment, building renovations, and construction. At...