Winnie v. Winnie

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WHITE
• Citation: Winnie v. Winnie, 645 N.Y.S.2d 167, 229 A.D.2d 677 (N.Y. App. Div. 1996)
• Decision Date: 11 July 1996
• Parties: Katherine T. WINNIE, Appellant, v. Donald WINNIE, Jr., Respondent.

Page 167

645 N.Y.S.2d 167

229 A.D.2d 677

Katherine T. WINNIE, Appellant, v. Donald WINNIE, Jr., Respondent.

Supreme Court, Appellate Division Third Department.

July 11, 1996.

Ackerman, Wachs & Finton, P.C. (Stewart M. Finton, of counsel), Albany, for appellant.

David Brickman, Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and SPAIN, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Teresi, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered January 26, 1995 in Albany County, upon a decision of the court.

The parties were married in 1960 and had three sons, born in 1962, 1963 and 1971. Shortly after their marriage, plaintiff, who had been working for the Department of Taxation and Finance, left her job to assume full-time responsibilities as wife and mother. Defendant worked at a number of jobs, including several years in the U.S. Air Force. In 1974 he abandoned the marital home, leaving a note that he would send money but that plaintiff should not try to find him. Sometime later plaintiff learned that defendant had purchased property in the Town of Nassau, Rensselaer County, where he was living with his paramour. After his departure from the marital residence, defendant provided child support in the amount of $70 per week which later decreased to $60 per week when the oldest child reached majority and eventually to $30 per week when the second child reached majority. Plaintiff supported herself and the children on these payments, public assistance and, later, Supplemental Security benefits (hereinafter SSI) to which she became entitled as a result of debilitating arthritis. Meanwhile, defendant obtained employment with the New York State Thruway Authority and advanced to the position of Building Maintenance Supervisor.

Plaintiff commenced this action in March 1992, at which time defendant's salary was nearly $50,000 per year and it was stipulated that defendant's real estate in Nassau had a value of $62,000 and his pension a value of $58,885. In addition, defendant had a Nissan automobile worth approximately $7,000 and a bank account in the amount of $5,525. It is undisputed that all of these assets were acquired by defendant after leaving the marital home and prior to the commencement of the divorce action. At the conclusion of the trial, Supreme Court granted plaintiff a divorce and found that because plaintiff made no contribution to either the Nassau property or the automobile, neither were subject to equitable distribution. The court awarded plaintiff lifetime maintenance of $140 per week and a 15% share of the value of defendant's pension. Plaintiff contends that maintenance of $140 per week is inadequate in light of her expenses and the relative inequities in the parties' financial circumstances and, in addition, that she did not receive an equitable share of the marital property.

Domestic Relations Law § 236(B)(5)(c) provides that marital property be distributed equitably considering the needs and circumstances of the respective parties and in proportion to their contribution to the marriage (see, Suydam v. Suydam, 203 A.D.2d 806, 807, 610 N.Y.S.2d 976, lv dismissed 84 N.Y.2d 923, 621 N.Y.S.2d 521, 645 N.E.2d 1221). Although equitable distribution does not necessarily mean equal distribution (see, Greenwald v. Greenwald, 164 A.D.2d 706, 713, 565 N.Y.S.2d 494, lv denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443), it is necessary to give proper consideration to one party's contributions as the primary homemaker and caretaker, particularly where that party was forced to assume sole responsibility for child rearing (see, Kaplinsky v. Kaplinsky, 198 A.D.2d 212, 213, 603 N.Y.S.2d 574; Verrilli v. Verrilli, 172 A.D.2d 990, 992, 568 N.Y.S.2d 495, lv denied 78 N.Y.2d 863, 578 N.Y.S.2d 878, 586 N.E.2d 61; see also, Greenwald v. Greenwald, supra, at 714, 565 N.Y.S.2d 494).

Here, we find that the parties are both approximately 55 years of age, had resided together for 14 years after the marriage and remained married for 18 years after defendant left the marital residence. It is undisputed that plaintiff cared for the parties' children and maintained a home for them with extremely limited resources and that the youngest...