Wortman v. Wortman

• Decision Date: 18 October 2004
• Docket Number: 2002-02104.
• Citation: 783 N.Y.S.2d 631,2004 NY Slip Op 07480,11 A.D.3d 604
• Parties: JUDY WORTMAN, Respondent, v. WILLIAM J. WORTMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

11 A.D.3d 604

783 N.Y.S.2d 631

2004 NY Slip Op 07480

JUDY WORTMAN, Respondent, v. WILLIAM J. WORTMAN, Appellant.

2002-02104.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 18, 2004.

Motion by the respondent for resettlement and clarification of a decision and order of this Court dated September 15, 2003 [308 AD2d 486], which determined an appeal from an order of the Supreme Court, Nassau County, entered December 24, 2001.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is granted; and it is further,

Ordered that the decision and order dated September 15, 2003, in the above-entitled case is recalled and vacated, and the following decision and order is substituted therefor:

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Stack, J.), entered December 24, 2001, which, after a nonjury trial, inter alia, (a) awarded the plaintiff wife maintenance of $20,000 per month for a period of five years, and $15,000 per month for a period of four years thereafter, (b) directed him to pay the college expenses of the parties' daughter, (c) awarded the plaintiff wife the parties' investment account at Sanford C. Bernstein & Co., LLC, and (d) included the cash surrender value of certain life insurance policies owned by an insurance trust in the distributive award.

Ordered that the judgment is modified, on the law, by adding a provision thereto directing that the amounts the defendant husband is required to pay for the college expenses of the parties' daughter which are duplicative of basic child support while the child lives away from home shall be deducted from his child support obligation; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff wife.

The parties were married in 1981 and have one child, a daughter who is now 17 years old. The defendant husband is a highly successful physician who earns well over $1,000,000 per year as a partner in a radiology group. Although the plaintiff wife was employed during the early years of the parties' marriage, she stopped working in 1983, and has not been employed outside of the home since that time.

On appeal, the defendant contends that the Supreme Court improperly awarded the plaintiff maintenance for a nine-year duration because she is capable of becoming self-supporting in a shorter period of time. However, it is well settled that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts (see McCully v McCully, 306 AD2d 329 [2003]; Sidhu v Sidhu, 304 AD2d 816, 817 [2003]; Chalif v Chalif, 298 AD2d 348 [2002]; Mazzone v Mazzone, 290 AD2d 495 [2002]). The factors to be considered in awarding maintenance include "the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance" (Unterreiner v Unterreiner, 288 AD2d 463 [2001] [internal quotation marks omitted]; Poli v Poli, 286 AD2d 720, 723 [2001]; Kret v Kret, 222 AD2d 412 [1995]). Taking these factors into consideration, the Supreme Court providently exercised its discretion in granting the plaintiff, who has been out of the work force for over 20 years, maintenance for a nine-year duration (see Chalif v Chalif, supra; Unterreiner v Unterreiner, supra; Sheridan v Sperber, 269 AD2d 439 [2000]).

Furthermore, the Supreme Court correctly awarded the parties' investment account at Sanford C. Bernstein & Co., LLC, to the plaintiff. Although the defendant claimed that the funds in this account were "earmarked" to pay the college expenses of the parties' daughter, the Supreme Court found his testimony regarding financial matters to be less than credible, and the Supreme Court's assessment of the credibility of witnesses is entitled to great weight on appeal (see Antes v Antes, 304 AD2d 597 [2003]; ...