Breen v. Breen

2023 NY Slip Op 06566

James L. Breen, Appellant, v. Teresa C. Breen, Defendant.

Nos. 533526, 534233

Supreme Court of New York, Third Department

December 21, 2023

Calendar Date: October 18, 2023

James L. Breen, Port Henry, appellant pro se.

Before: Clark, J.P., Aarons, Pritzker, Ceresia and Fisher JJ.

CLARK J.P.

Appeals (1) from an order of the Supreme Court (James E. Doern J.H.O.), entered May 13, 2021 in Saratoga County, which, among other things, calculated plaintiff's maintenance obligation, and (2) from a judgment of said court (Vincent W. Versaci, J.), entered September 23, 2021 in Saratoga County, granting a judgment of divorce.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1984 and have two adult children. The husband left the marital residence around March 2017, and he commenced the instant matrimonial action thereafter. Following some motion practice by the parties, Supreme Court (Pelagalli, J.) issued a pendente lite order in January 2020, among other things, directing that the husband pay the wife temporary spousal maintenance and granting the wife exclusive use and possession of the marital residence. The parties, each represented by counsel, proceeded to trial on January 31, 2020, and the court recused itself thereafter. After the matter was reassigned, the parties consented to Supreme Court (Jensen, J.) reading the January 2020 transcript and continuing the trial. Prior to such continuation, the husband - an attorney himself - fired his counsel and proceeded pro se for the remainder of the proceedings. Following the second day of trial on July 30, 2020, Supreme Court issued an order of reference transferring the matter to Judicial Hearing Officer James Doern (hereinafter the JHO), and, in lieu of restarting the trial, the parties consented to the JHO reading the January 2020 and July 2020 trial transcripts and continuing the trial therefrom. After eight additional trial days, the JHO issued a decision and order, entered in May 2021, determining, among other things, the issues of spousal maintenance and equitable distribution. That order was then incorporated into the judgment of divorce issued by Supreme Court (Versaci, J.). The husband appeals from the May 2021 order and the subsequent judgment of divorce. ^[1]

Initially, we must comment on the state of the record on appeal. The husband first filed a brief and a two-volume proposed record on appeal in January 2022; after the wife failed to file a brief, the matter was scheduled for our September 2022 term. This Court then informed the husband that the two-volume record on appeal was incomplete, as it included transcripts for only four of the 10 trial days. In July 2022, after the husband failed to supplement the record, the appeal was removed from our calendar, and the husband was given another opportunity to perfect his appeal with a complete record. In late September 2022, the husband submitted a new brief and a four-volume record on appeal. Soon after, the wife, represented by counsel, sought an extension to file a respondent's brief, which relief the husband opposed; after motion practice, the wife was given until March 2023 to respond. The wife again failed to file a brief, and the appeal was scheduled for the October 2023 term. Despite the husband having filed four volumes, the record on appeal remains deficient. Although transcripts for the 10 days of trial are now included, the transcripts are missing portions of the testimony, most obviously, the cross-examination of the wife during the husband's case-in-chief and the beginning of his own direct examination. Further, the husband failed to include the wife's papers opposing his motions for pendente lite relief, as well as various exhibits. Although these deficiencies exist, this record is sufficient to allow us to review the husband's arguments on appeal (compare Matter of County of Broome [Cadore], 212 A.D.3d 1012, 1014 [3d Dept 2023], appeals dismissed 39 N.Y.3d 1116 [2023], 40 N.Y.3d 954 [2023], 40 N.Y.3d 954 [2023]).

Turning to the merits, the husband's contention that Supreme Court (Doern, J.H.O.) erred when it used one method to impute income to him and a different method to impute income to the wife lacks merit, as the parties had vastly different employment and income histories (see Matter of Hall v Davis, 176 A.D.3d 1374, 1376 [3d Dept 2019]). A court is not bound by a party's representations of his or her finances and, instead, may exercise its considerable discretion to impute income to a party based upon, among other things, that party's education, employment history and demonstrated earning potential, and we defer to the trial court's underlying credibility determinations (see McGovern v McGovern, 218 A.D.3d 1067, 1072 [3d Dept 2023]; King v King, 202 A.D.3d 1383, 1385 [3d Dept 2022]; Mack v Mack, 169 A.D.3d 1214, 1217 [3d Dept 2019]). By the conclusion of the trial, both parties were unemployed. In deciding to impute the wife's income at $15,000 based upon her most recent tax return, the court considered that the wife had been a homemaker since the birth of the parties' oldest child in 1991, that her teaching certification had long lapsed and that she had only held part-time jobs outside the home on a sporadic basis, and we find no abuse of discretion in such decision (see Miszko v Miszko, 163 A.D.3d 1204, 1207 [3d Dept 2018], lv denied 33 N.Y.3d 907 [2019]; cf. Yezzi v Small, 206 A.D.3d 1472, 1476 [3d Dept 2022]; Sadaghiani v Ghayoori, 83 A.D.3d 1309, 1312 [3d Dept 2011]). As to the husband, the record is sparse regarding his income from 1987 until 2014, during which time he engaged in the private practice of law and worked as a village attorney and a village justice. In 2014, the husband accepted a position with a state agency, initially earning an annual salary of $90,000, and climbing to $106,503 by his departure in June 2019. At that time, the husband accepted a position with a different state entity earning an annual salary of $150,000. He concedes that he was terminated for cause from that position during the pendency of the trial. Despite a showing of such earning capacity, the court noted the husband's retirement age and declined to impute that income to him. Rather, the court properly exercised its discretion in using New York State Department of Labor statistics to impute $99,281, the median wage for an attorney in the Capital Region, as income to the husband (cf. Matter of Kasabian v Chichester, 72 A.D.3d 1141, 1142 [3d Dept 2010], lv denied 15 N.Y.3d 703 [2010]).

The husband also argues that Supreme Court erred in determining the duration of his spousal maintenance obligations and in failing to give him a tax impact credit. ^[2] According to the guidelines, for a marriage lasting over 20 years, the duration of any spousal maintenance payments ordered should be between 35% and 50% of the length of the marriage (see Domestic Relations Law § 236 [B] [6] [f] [1]). Ultimately, the sum and duration of spousal maintenance is left to the sound discretion of the trial court and will not be disturbed so long as the court considered, among other things, the age and health of the parties, their respective earning capacities and their predivorce standards of living (see Domestic Relations Law § 236 [B] [6] [e] [1]; [f] [2], [4]; McGovern v McGovern, 218 A.D.3d at 1072; Westbrook v Westbrook, 212 A.D.3d 1014, 1017 [3d Dept 2023]). The court expressly deviated downward from the guidelines - which suggested that the duration of maintenance for this 34-year marriage should be between 11.9 and 17 years - due to, among other reasons, the parties' ages, their limited future earning potentials and the tax impact of the federal Tax Cuts and Jobs Act of 2017 (Pub L 115-97, § 11051, 131 U.S. Stat 2089). Our review of this record confirms that the court considered the appropriate factors (see Domestic Relations Law § 236 [B] [6] [e] [1] [a-o]), and we do not find the decision to direct the husband to pay the wife spousal maintenance for 10 years to be an abuse of discretion (see Louie v Louie, 203 A.D.3d 1520, 1521 [3d Dept 2022]). ^[3]

In challenging the equitable distribution award, the husband first asserts that Supreme Court should have classified a vacant lot in the hamlet of Port Henry, located in the Town of Moriah, Essex County as his separate property. The classification of property as either marital property or separate property presents a question of law (see Hughes v Hughes, 198 A.D.3d 1170, 1171 [3d Dept 2021]; Mack v Mack, 169 A.D.3d at 1215). Property obtained during a marriage is presumptively classified as marital property which presumption must be rebutted by the party seeking to classify an asset as separate property (see Louie v Louie, 203 A.D.3d at 1522-1523; Mack v Mack, 169 A.D.3d at 1215; compare Domestic Relations Law § 236 [B] [1] [c], with Domestic Relations Law § 236 [B] [1] [d]). The record on appeal reveals that, throughout their lengthy marriage, the parties obtained title to several parcels of real property, including the vacant lot at issue. Although the wife initially appeared to assert that the vacant lot was purchased by the husband's father, we defer to the court's credibility determination crediting the wife's subsequent testimony that she had been confused and that her earlier assertion referred to a different parcel of land owned by the husband nearby in the Town of Moriah. The deed for the vacant lot was admitted into evidence and shows that, in 1999, the husband purchased this lot from four individuals to whom he shares no relation. Because the husband purchased the vacant lot during the marriage, it is presumptively classified as marital property, and, deferring to the court's credibility determinations, we find that the...