Vicinanzo v. Vicinanzo

• Decision Date: 20 May 1993
• Citation: 598 N.Y.S.2d 362,193 A.D.2d 962
• Parties: Anne E. VICINANZO, Respondent-Appellant, v. Vincent E. VICINANZO, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 362

598 N.Y.S.2d 362

193 A.D.2d 962

Anne E. VICINANZO, Respondent-Appellant, v. Vincent E. VICINANZO, Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

May 20, 1993.

Nicholas D. Morsillo (Timothy M. Tippins of The Tippins Law Firm, Troy, of counsel), Schenectady, for appellant-respondent.

Zubres, D'Agostino, Hoblock & Greisler, P.C. (Pamela A. McMahon, of counsel), Albany, for respondent-appellant.

Before MIKOLL, J.P., and YESAWICH, MERCURE and CREW, JJ.

YESAWICH, Justice.

(1) Cross appeals from a judgment of the Supreme Court (White, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered June 20, 1991 in Montgomery County, upon a decision of the court, and (2) appeals from three orders of said court, entered August 12, 1991, September 6, 1991 and October 17, 1991 in Montgomery County, which, inter alia, partially granted plaintiff's motions for maintenance arrears, counsel fees and contempt.

The parties were married in 1958 and have seven adult children. Defendant, a sole practitioner, owns and operates a successful law practice in the City of Amsterdam, Montgomery County; plaintiff, who gave up a budding teaching career at the time of the parties' marriage, has been a full-time homemaker and caretaker for the children since then. Plaintiff commenced this action for a divorce on October 30, 1987; simultaneously, she moved for interim maintenance, child support for the parties' youngest child, Matthew, who was then 17 years old, and counsel fees. Defendant opposed the motion, but prior to its return date gave plaintiff a check for $100,000. In view of this payment, Supreme Court denied plaintiff's motion, but in its order dated November 13, 1987 directed that plaintiff use "a reasonable portion" of the $100,000 "in lieu of a further pendente lite monetary award at this juncture". Plaintiff utilized approximately $63,000 of this sum to cover the expenses of operating the household for herself and Matthew during the next 13 months. On November 29, 1988, plaintiff moved again for temporary maintenance and counsel fees and, on April 11, 1989, Supreme Court ordered defendant to pay $4,000 per month, as maintenance, until the case was finally adjudicated. Although this award was made retroactive to December 20, 1988, the order also provided that such retroactive amounts would be determined at trial; a clarifying order, dated June 14, 1989, alludes to the possibility that defendant may seek credit for previous payments. Defendant began making monthly payments in June 1989 and the record indicates that the last payment was made in April 1991.

After defendant withdrew his answer and stipulated to a divorce on the grounds specified by plaintiff, a bench trial, at which plaintiff and defendant testified at length, was held on the issues of equitable distribution and maintenance. Plaintiff also presented expert testimony as to the value of defendant's law practice. When defendant sought to call his own expert to testify on the subject, however, plaintiff objected on the grounds that the expert's qualifications and the substance of his opinions had not been disclosed pursuant to plaintiff's ongoing request under CPLR 3101(d). Supreme Court reserved judgment on the motion and heard the expert's testimony; the court ultimately ruled in plaintiff's favor and refused to consider the substance of the testimony in arriving at its decision.

A final judgment, entered on June 20, 1991, distributed the parties' property essentially equally, and awarded plaintiff $3,000 in temporary maintenance arrears, permanent maintenance of $500 per week, beginning on June 10, 1991, and counsel fees of $40,000. Both parties appeal.

As reflected in orders entered August 12, 1991 and September 6, 1991, plaintiff subsequently successfully moved for payment of permanent maintenance arrears and was awarded counsel fees of $1,200. On October 17, 1991, plaintiff secured an order holding defendant in contempt for failing to transfer certain bonds to her, as unequivocally directed in the equitable distribution judgment. As a consequence, defendant was found in contempt and was directed to turn over the bonds along with the sum of $383,612, the amount still due as part of the equitable distribution of property, and plaintiff was awarded an additional $1,200 in counsel fees. Defendant appeals these orders.

Four issues involving maintenance and child support have been raised by the parties: both parties assert that Supreme Court's determination of the amount of temporary maintenance arrears was incorrect (defendant claims that no arrears are due, and plaintiff claims that the true amount owed is greater than that awarded by the court); defendant questions the propriety of the court's award of permanent, nondurational maintenance in the amount of $500 per week and the counsel fees awarded to plaintiff; and plaintiff contends that the court erred in failing to provide child support for Matthew during the pendency of the action and also in failing to order defendant to pay for Matthew's college education beyond his 21st birthday.

Initially, we note that because the final order and judgment in this action finally determine the amount of arrearages due under the pretrial orders, the issues of interim maintenance and child support addressed by those orders are reviewable at this time (see, CPLR 5501[a][1].

With regard to maintenance pendente lite, Supreme Court calculated the amount of maintenance due from December 20, 1988--the date on which Supreme Court had indicated the $4,000 payments were to begin--until the beginning of the trial to be $68,000, and subtracted the $65,000 plaintiff averred she had received during that time, concluding that defendant owed $3,000 in arrears. Defendant argues that he should have been given credit for the $100,000 payment he made at the commencement of the action, or at least for that portion of the $100,000 which exceeds the "reasonable portion" plaintiff was permitted to spend pursuant to the court's November 13, 1987 order. Given that Supreme Court, in its clarifying order of June 14, 1989, explicitly reserved the determination of arrears, as well as defendant's claims for credit for prior payments made, until the trial, the court should have taken into consideration the fact that plaintiff admittedly had approximately $37,000 of the $100,000 at the time she moved for interim relief in November 1988. Even assuming that the entire $63,000 spent by plaintiff between October 1987 and November 1988 was "reasonable", defendant should still receive credit for the remaining $37,000 (see, Berge v. Berge, 159 A.D.2d 960, 961, 552 N.Y.S.2d 779; Gluck v. Gluck, 134 A.D.2d 237, 240, 520 N.Y.S.2d 581).

The record shows that defendant paid a total of $92,000 between June 1989 and April 1991, and that the total amount due under the second temporary maintenance order, which should have directed that its obligation was to begin on November 29, 1988, the date plaintiff moved for interim relief (see, Berge v. Berge, supra, 159 A.D.2d at 961, 552 N.Y.S.2d 779)--was $124,000 (31 payments of $4,000 each). Thus, when defendant is given credit for the $37,000 which he previously paid, there is no arrearage due.

The child support issue lacks substance. The November 1987 order did not specify what portion of the $100,000 was attributable to child support; it simply directed that a reasonable portion of the entire amount be used "in lieu of a further pendente lite monetary award", presumably to cover both the maintenance and child support which plaintiff had requested. However, inasmuch as the needs of both plaintiff and her son, who was then still a minor, were apparently fully satisfied during the period from October 1987 until December 1988 from the $100,000, no further award of child support is necessary to cover this time period.

As for the $4,000 payments made pursuant to the second motion for interim relief, we note that although plaintiff presented proof of Matthew's expenses along with her own, she did not specifically request an award of temporary child support at that juncture. Although the courts are bound to provide for dependent children, pending litigation, if it appears that such provision is necessary to meet their reasonable needs (see, Domestic Relations Law § 236[B][7][a], there is no indication that plaintiff was unable to meet Matthew's needs during the pendency of the action. Thus, Supreme Court did not err in failing to order separate payments for child support at that time, or in failing to apportion the amount ordered between maintenance and child support.

Moreover, in view of the fact that defendant paid all of the couple's joint income taxes for 1987 and 1988 and gave plaintiff money with which to pay her taxes in 1989 and 1990, no purpose would be served by directing an apportionment for tax purposes, as requested by plaintiff.

Plaintiff next asserts that because there are "special circumstances", including the fact that Matthew's siblings have all attended college and that defendant is well-situated financially to pay for a college education, defendant should be required to pay for Matthew's tuition, room and board beyond his 21st birthday. As this case clearly presents all three of the special circumstances which bear on a parent's obligation to finance a child's education (see, Matter of Healey v. Healey, 190 A.D.2d 965, 968, 594 N.Y.S.2d 90), the issue to be confronted is whether, absent a prior arrangement between the parents, that obligation extends beyond the child's 21st birthday. Although we have certainly suggested, in dicta, that such an obligation may be found when there are special circumstances (see, e.g., Graham v. Graham, 175 A.D.2d 540, 542, 572 N.Y.S.2d 800; Niles v. Niles, 126 A.D.2d 874, 875, 510 N.Y.S.2d 781), a recent holding of the Court of Appeals compels us to now conclude that the law of New York does...