D'Iorio v. D'Iorio

135 A.D.3d 693

24 N.Y.S.3d 325

2016 N.Y. Slip Op. 00148

Steven D'IORIO, respondent,

v.Susan D'IORIO, appellant.

2014-00354

Index No. 1889/10.

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

Jan. 13, 2016.

Elisabeth A. Vreeburg, Kew Gardens, N.Y., for appellant.

Davidoff Hutcher & Citron LLP, New York, N.Y. (Malcolm S. Taub and Eve F. Helitzer of counsel), for respondent.

Appeal from stated portions of a judgment of divorce of the Supreme Court, Suffolk County (William J. Kent, J.), entered September 18, 2013. The judgment, insofar as appealed from, upon a decision of the same court dated July 29, 2013, made after a nonjury trial, inter alia, (a) awarded the defendant the sum of $877.23 per week in spousal maintenance for a period of only eight years, retroactive to December 1, 2010, (b) awarded the defendant additional maintenance in the sum of $532 per month for COBRA benefits for a period of only 36 months postjudgment, (c) failed to direct the plaintiff to maintain life insurance policies to secure the defendant's interest in maintenance payments and the plaintiff's pensions, and (d) awarded the plaintiff a credit for the temporary maintenance payments made pursuant to the pendente lite orders and a credit for one-half of the voluntary payments the plaintiff made, including the carrying charges on the marital residence and on a cooperative apartment, and for all costs for the automobile of which the defendant had exclusive use during the pendency of the action.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by deleting from the seventh decretal paragraph thereof the words “for eight (8) years”; (2) by deleting from the ninth decretal paragraph thereof the words “earlier upon” and substituting therefor the words “upon the earliest of the defendant's eligibility for full Social Security retirement benefits,” (3) by deleting from the eighth decretal paragraph thereof the words “36 months of,” and adding, after the words “$532.00 per month,” the words “until the earliest of the defendant's eligibility for Medicare, obtaining health insurance through employment, or termination of the plaintiff's obligation to pay maintenance,” (4) by adding a provision thereto directing the plaintiff to maintain a life insurance policy for the benefit of the defendant until payment of maintenance, including the additional maintenance to cover the cost of the defendant's health insurance premiums, is completed, in an amount sufficient to secure the amount of those obligations, and (5) by deleting the provision thereof crediting the plaintiff for one-half of the voluntary payments that the plaintiff made for the carrying charges on the marital residence and on a cooperative apartment and for all costs for the automobile of which the defendant had exclusive use during the pendency of the action; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff and the defendant were married on January 3, 1987, and have three children, one of whom is unemancipated. The plaintiff, born in 1949, had been steadily employed throughout the marriage. During the marriage, the defendant, born in 1957, was the primary caregiver for the children and a homemaker. Following 23 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a partial stipulation of settlement, resolving the issues of equitable distribution and child support. The matter proceeded to trial solely on the issue of maintenance. Following the trial, the Supreme Court, inter alia, (1) awarded the defendant the sum of $877.23 per week in spousal maintenance for a period of eight years, retroactive to December 1, 2010, (2) awarded the defendant additional maintenance in the sum of $532 per month for COBRA benefits for a period of 36 months postjudgment, and (3) awarded the plaintiff a credit against retroactive arrears for the temporary maintenance payments made pursuant to the pendente lite orders and a credit for one-half of the voluntary payments he made, including the carrying charges on the marital residence and on a cooperative apartment, and for all costs for the automobile of which the defendant had exclusive use during the pendency of the action. The defendant appeals from these portions of the judgment, as well as from the court's failure to direct the plaintiff to maintain life insurance policies to secure her interest in the maintenance payments and the plaintiff's pensions.

Initially, we note that, in its decision after trial, dated July 29, 2013, which was incorporated into the judgment of divorce, the Supreme Court stated that “[i]n the unlikely event there are arrears, the defendant shall pay same within forty-five (45) days.” The parties acknowledge that this was a scrivener's error and it would be the plaintiff, not the defendant, who would pay any arrears.

“[I]t 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” (Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631; see Lamparillo v. Lamparillo, 130 A.D.3d 580, 581, 12 N.Y.S.3d 296; DiBlasi v. DiBlasi, 48 A.D.3d 403, 404, 852 N.Y.S.2d 195). The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting (see Gordon v. Gordon, 113 A.D.3d 654, 655, 979 N.Y.S.2d 121; DiBlasi v. DiBlasi, 48 A.D.3d at 404, 852 N.Y.S.2d 195; Bains v. Bains, 308 A.D.2d 557, 559, 764 N.Y.S.2d 721). “The factors to be considered in a maintenance award 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 be 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” (Gordon v. Gordon, 113 A.D.3d at 654–655, 979 N.Y.S.2d 121; see Domestic Relations Law § 236[B]6[a]; Carroll v. Carroll, 125 A.D.3d 710, 711, 3 N.Y.S.3d 397). Another factor, which this Court has considered when the marriage has been of long duration, is whether the party seeking maintenance was the primary homemaker and caregiver for the parties' children during the marriage (see McCaffrey v. McCaffrey, 107 A.D.3d 1106, 1106–1107, 967 N.Y.S.2d 162; Rodriguez v. Rodriguez, 70 A.D.3d 799, 802, 894 N.Y.S.2d 147).

Here, the amount of maintenance awarded by the Supreme Court was consistent with the purpose and function of a maintenance award, and the court appropriately considered, among other things, the defendant's lack of effort to find employment, her limited work experience, and the absence of child-rearing responsibilities given the children's ages (see Carroll v. Carroll, 125 A.D.3d at 711, 3 N.Y.S.3d 397; Marley v. Marley, 106 A.D.3d 961, 962, 965 N.Y.S.2d 375; Giokas v. Giokas, 73 A.D.3d 688, 689, 900 N.Y.S.2d 370). The Supreme Court, however, improvidently exercised its discretion in its determination as to the duration of the maintenance award. The court fixed the duration of maintenance at eight years, retroactive to December 1, 2010, unless terminated earlier pursuant to Domestic Relations Law § 248 by the defendant's remarriage or cohabitation, or upon the death of either party (see Carroll v. Carroll, 125 A.D.3d at 711, 3 N.Y.S.3d 397; Hymowitz v. Hymowitz, 119 A.D.3d 736, 742, 991 N.Y.S.2d 57). In light of the parties' long-term marriage, respective ages, and financial circumstances, and the defendant's limited work experience, “it is unrealistic to believe” that the defendant will be able to achieve a “level of financial independence which would eliminate” her need to rely on the plaintiff's support (Kret v. Kret, 222 A.D.2d 412, 412, 634 N.Y.S.2d 719; see Rabinovich v. Shevchenko, 93 A.D.3d 774, 775, 941 N.Y.S.2d 173). Accordingly, the duration of the...