Wilson v. Wilson

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ASCH; FEIN; All concur except KASSAL; KASSAL
• Citation: Wilson v. Wilson, 476 N.Y.S.2d 120, 101 A.D.2d 536 (N.Y. App. Div. 1984)
• Decision Date: 17 April 1984
• Parties: Cynthia WILSON, Plaintiff-Respondent, v. William H. WILSON, Defendant-Appellant.

Page 120

476 N.Y.S.2d 120

101 A.D.2d 536

Cynthia WILSON, Plaintiff-Respondent, v. William H. WILSON, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 17, 1984.

Edmund F. Wolk, New York City, for defendant-appellant.

Morton Grossman, New York City, of counsel (Grossman & Zafrin, P.C., New York City, attorneys), for plaintiff-respondent.

Before ASCH, J.P., and SILVERMAN, FEIN, LYNCH and KASSAL, JJ.

FEIN, Justice.

This appeal is only from so much of a judgment granting plaintiff a divorce from defendant, as directs defendant (1) to pay plaintiff the sum of $45,000; (2) to pay maintenance to plaintiff for three years at the rate of $350 per week; (3) to deliver to plaintiff certain personal property deemed to be her separate property; (4) to pay plaintiff's counsel fees and disbursements in the amount of $9,673; (5) to provide plaintiff with Blue Cross/Blue Shield, major medical and dental insurance coverage for three years; (6) to designate plaintiff the irrevocable beneficiary of one-third of the proceeds of the life insurance policy provided to defendant as an incident of his employment; and (7) to designate plaintiff the irrevocable beneficiary of 8 1/2% ten-year benefits under the spousal protection provision of defendant's retirement/pension plan.

Domestic Relations Law § 236 B, subd. 5 g and subd. 6 b provide that in any action for divorce where an equitable disposition of property is made and spousal maintenance is awarded, the trial court must set forth the factors it considered and the reasons for its decision. This requirement is mandatory, and may not be waived by either party. An insufficient explanation for the court's findings and determination requires reversal of the judgment and remand for further consideration (D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23; Conde v. Conde, 96 A.D.2d 747, No. 82, 465 N.Y.S.2d 621; Nielsen v. Nielsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888; Hanford v. Hanford, 91 A.D.2d 829, 458 N.Y.S.2d 418). Where the trial court's reasons have not been sufficiently delineated, there is no basis for intelligent review of the judgment on appeal (O'Sullivan v. O'Sullivan, 94 A.D.2d 407, 409, 464 N.Y.S.2d 583). But where the record does reveal sufficient evidence to afford an adequate review on appeal, the trial court's decision can be reviewed and modified by the Appellate Division (Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477; Krivitzky v. Krivitzky, 94 A.D.2d 655, 462 N.Y.S.2d 461; Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240). The record in this case is sufficient for such a review.

The factors which the court is mandated to consider are found in DRL § 236 B, subd. 5 d as to disposition of property, and in subd. 6 a as to maintenance. A number of these factors were listed in the court's decision and its detailed findings of fact, but there was no analysis or discussion to demonstrate how these factors influenced the court's determination and award: payment of a $45,000 lump sum, maintenance of $350 per week for three (3) years, a percentage of benefits under defendant's pension plan, one-third of the proceeds of defendant's employment life insurance policy, and payment of plaintiff's medical insurance premiums for three years.

We have no quarrel with most of the trial court's findings of fact. But while there is no set formula for fixing maintenance and distributing marital property, the court must give some rationale for the conclusions of law drawn from those findings. In our view of the record the award is in part excessive and in part without lawful basis.

This was a marriage of relatively short duration, without issue. The parties were married in New York City on May 18, 1980. Defendant, who is 27 years plaintiff's senior, had been recently widowed of his first marriage of 37 years. Plaintiff moved out of the marital residence at defendant's request two weeks after the marriage, returning in October 1980, and staying until their final separation in September 1981. The ground for divorce was defendant's constructive abandonment of plaintiff by refusing sexual relations. During the period of cohabitation the parties were each in generally good health. Plaintiff, who was found to have provided the services of a homemaker during the period of cohabitation, was employed prior and subsequent to the marriage, earning $17,550 per year at the time of the divorce. Defendant was employed during the marriage, earning at the time of the divorce a stated annual salary of $63,500 plus such benefits as employer-provided family Blue Cross/Blue Shield, major medical and dental coverage, a vested, non-contributory retirement pension plan worth $1100 per month at the time of the divorce, and a life insurance policy worth one and one-half times his salary to his beneficiary at the time of defendant's death. Defendant is also the beneficiary of a tax-deferred annuity plan to which he voluntarily contributed $545.54 every two weeks, which will provide him with $1182 per month upon retirement, and which contains an option for guaranteed ten-year minimum half-benefits to his surviving spouse during her lifetime. Trial Term determined that defendant's total amount of contributions to this annuity was over $71,000, of which $19,441.85 was contributed during the marriage, a sum considered to be "marital property".

Of all the factors set forth in subd. 5 d and 6 a of DRL § 236 B, the most pertinent in this case appear to be those concerning the duration of the marriage and the lack of issue. The parties lived together during the marriage for less than a year, apparently under strained circumstances which did not facilitate the establishment of a normal standard of living (see DRL § 236 B, subd. 6 a cf. Jolis v. Jolis, 111 Misc.2d 965, 990, 446 N.Y.S.2d 138, affd. 98 A.D.2d 692, 470 N.Y.S.2d 584).

In light of the limited relationship between the parties, and the fact that plaintiff was and has been a proven wage earner during contiguous periods outside the marriage, the trial court's award appears largely inflated in several respects.

The trial court awarded plaintiff $350 per week for three years. This amounts to nearly 27% of defendant's stated gross annual income from salary as vice president of Lenox Hill Hospital of $63,500, with 8% yearly increases. In the light of plaintiff's income-producing capabilities as well as her comparatively minimal contribution to the household with no responsibilities for child care, it is patent that the size of this maintenance award was unjustified (cf. Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240). Trial Term's finding that defendant enjoys an "actual disposable real income of approximately $135,000.00 per annum" appears to be questionable.

Since defendant stated that he had filed no income tax returns for the previous three years, his actual income was unverifiable. Nonetheless, it is plain that defendant's real income substantially exceeds his stated salary. Thus, he receives full health benefits at no cost to himself and is the beneficiary of a non-contributory pension plan. Moreover he receives other substantial perquisities including a nine room rent-free apartment, car service and maintenance, cut-rate laundry service, substantial gratuities from suppliers of Lenox Hill Hospital, including a T.V., camera, carpeting, gift certificates, free entertainment, and a host of other benefits. Although many of these items may not constitute disposable income, and are perhaps not quantifiable, they amount to real income. The dissent discounts these items of real income, although they appear to total almost as much as defendant's reported income. Such benefits are to be weighed even though they may not fully justify the trial court's finding of $135,000 per annum disposable real income, on which the award of $350 per week maintenance for three years was apparently based. (DRL § 236 B subd. 6a). In our view, a more appropriate award would be $200 per week for three years.

In so determining, we have also considered the change in plaintiff's income which came about as a result of the marriage and its termination. At the inception of the marriage plaintiff was self-supporting, working as an administrative assistant at Lenox Hill Hospital at a yearly salary of $16,130.10, plus health insurance, sick leave, vacation and other perquisities including annual increments of approximately 8%. She lived in a studio apartment at a monthly rental of $263.00. During the marriage she gave up her job and apartment to live with the defendant, with all the benefits attendant upon such status. Although plaintiff's standard of living plainly improved as a result of the marriage, where the marriage is of such short duration and there are no issue, and the plaintiff is relatively young and capable of self-support, this factor is of limited weight. After the separation, plaintiff obtained employment at a private school as a secretary at a salary of $15,600 per year, and worked for a physician at $7.50 per hour. Her rent at the time of trial was $387.00 per month. There is no indication that she will receive annual increments or any of the other benefits appurtenant to her prior Lenox Hill Hospital job. Obviously her return to a job at the hospital is unlikely, in view of the fact that the defendant is a vice president of the hospital. Her current medical benefits are deducted from her salary.

It is plain that she is worse off economically since the marriage, and will require a period of time before improvement. Moreover, she has gone into debt to obtain furnishings and clothing due to defendant's retention of her private property.

Although this was a marriage of short duration and there are no issue of the marriage, she is entitled at the least, to be restored to the extent possible, to the economic situation which pre-existed the marriage. Concededly, as a relatively young woman, 37 years of age, she is likely to be able to...