Bari v. Bari

200 A.D.3d 835

161 N.Y.S.3d 97

Adam BARI, appellant-respondent,

v.Deena BARI, respondent-appellant.

2018–10550, 2018–12352

Index No. 201153/14

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

Argued—October 4, 2021

December 15, 2021

Jeffrey S. Schecter & Associates, P.C., Garden City, NY (Bryce R. Levine of counsel), for appellant-respondent.

Geffner Kersch P.C., Garden City, NY (Alisa F. Geffner of counsel), for respondent—appellant.

MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, and the defendant cross-appeals, from (1) a decision and order (one paper) of the Supreme Court, Nassau County (Joseph H. Lorintz, J.), dated June 22, 2018, made after a nonjury trial, and (2) a judgment of divorce of the same court entered August 3, 2018. The decision and order, inter alia, denied the defendant's motion for an award of attorneys’ fees and denied that branch of the plaintiff's motion which was for a downward modification of his pendente lite support obligations. The judgment of divorce, insofar as appealed from, upon the decision and order, (1) directed the plaintiff to pay the defendant maintenance for a period of eight years in the sums of $9,000 per month for four years, $7,500 per month for the following two years, and $5,000 per month for the remaining two years, (2) directed the plaintiff to pay for 100% of the debt on his American Express credit card and HSBC line of credit, (3) declined to award the plaintiff a credit for payments he made toward the defendant's Bloomingdale's credit card and landscaper fees, (4) declined to award the plaintiff a credit for payments he made toward the mortgage and real estate taxes on the marital residence, (5) directed the plaintiff to pay the sums of $5,075 per month in basic child support until the emancipation of the parties’ oldest child, $4,375 per month in basic child support thereafter until the emancipation of the parties’ middle child, and $2,975 per month in basic child support thereafter until the emancipation of the parties’ youngest child, (6) directed the plaintiff to pay 75% of the children's unreimbursed medical expenses, and (7) awarded the defendant pendente lite arrears in the sum of $49,500. The judgment of divorce, insofar as cross-appealed from, upon the decision and order, (1) declined to award the defendant attorneys’ fees, (2) declined to direct the plaintiff to pay for the "gap year" programs for the parties’ children, and (3) declined to award the defendant additional pendente lite arrears.

ORDERED that the appeal and the cross appeal from the decision and order are 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 adding a provision thereto awarding the plaintiff a credit in the sum of $26,240.21 for payments he made toward the principal reduction of the mortgage on the marital residence, and (2) by deleting the provision thereof directing the plaintiff to pay 75% of the children's unreimbursed medical expenses, and substituting therefor a provision directing the plaintiff to pay 75% of the children's unreimbursed medical expenses for in-network providers, or to pay 75% of unreimbursed medical expenses for out-of-network providers only if the provider has an established relationship with the child, the plaintiff has approved the provider in writing, or there are no available in-network providers; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The appeal and the cross appeal from the decision and order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of divorce in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal and the cross appeal from the decision and order are brought up for review and have been considered on the appeal and the cross appeal from the judgment of divorce (see CPLR 5501[a][1] ).

The parties were married on June 12, 1997, and have three children together. In April 2014, the plaintiff commenced this action for a divorce and ancillary relief. In March 2018, the Supreme Court conducted a nonjury trial on issues, inter alia, of maintenance and child support. In a decision and order dated June 22, 2018, the court, among other things, made determinations as to maintenance and child support. On August 3, 2018, the court entered a judgment of divorce. The plaintiff appeals and the defendant cross-appeals.

"The amount and duration of spousal maintenance is an issue generally committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances" ( Fishman v. Fishman, 186 A.D.3d 1199, 1200, 130 N.Y.S.3d 73 ). "In cases such as this one, commenced prior to January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to become self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties" ( Strohli v. Strohli, 174 A.D.3d 938, 942–943, 107 N.Y.S.3d 324 ). Here, considering the relevant factors, including the present and future earning capacities of the parties, the reduced earning capacity of the defendant as a result of having foregone career opportunities during the marriage, and the defendant's ability and time needed to become self-supporting, the Supreme Court's maintenance award was a provident exercise of discretion (see Fishman v. Fishman, 186 A.D.3d at 1200, 130 N.Y.S.3d 73 ; Ruane v. Ruane, 55 A.D.3d 586, 865 N.Y.S.2d 632 ).

We also decline to disturb the Supreme Court's determination directing the plaintiff to pay basic child support in the sums of $5,075 per month until the emancipation of the parties’ oldest child, $4,375 per month thereafter until the emancipation of the parties’ middle child, and $2,975 per month thereafter until the emancipation of the parties’ youngest child. "The Child Support Standards Act ‘sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling’ " ( Spinner v. Spinner, 188 A.D.3d 748, 751, 134 N.Y.S.3d 377, quoting Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65 ; see Domestic Relations Law § 240[1–b][c] ; Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765 ). " ‘Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both’ " ( Spinner v. Spinner, 188 A.D.3d at 751, 134 N.Y.S.3d 377, quoting Candea v. Candea, 173 A.D.3d 663, 664, 104 N.Y.S.3d 637 ; see Domestic Relations Law § 240[1–b][c][3] ). " ‘The court must articulate an explanation of the basis for its calculation of child support based...