Dilascio v. Dilascio

170 A.D.3d 804

95 N.Y.S.3d 588

Rosemary DILASCIO, Appellant,

v.Stephen J. DILASCIO, Respondent.

2016–08469

Index No. 202614/12

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

Argued - November 8, 2018

March 13, 2019

Glenn S. Koopersmith, Garden City, NY, for appellant.

Del Vecchio & Recine, LLP, Garden City, N.Y. (Phyllis Recine and Steve Del Vecchio of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof directing the defendant to pay maintenance and child support commencing on the first day of the first month following the entry of the judgment, and substituting therefor a provision directing the defendant to pay maintenance and child support retroactive to September 19, 2012, (2) by deleting the provision thereof directing the defendant to pay maintenance until the earliest of May 1, 2022, the death of either party, or the plaintiff's remarriage, and substituting therefor a provision directing the defendant to pay maintenance until the earliest of the plaintiff reaching the age of 62, the death of either party, or the plaintiff's remarriage, (3) by adding a provision thereto directing the defendant to pay the plaintiff's health insurance for the same duration as the defendant's maintenance obligation, and (4) by deleting the provision thereof directing the defendant to maintain life insurance in the sum of $500,000, naming the plaintiff as the beneficiary for as long as he was obligated to pay maintenance or child support, and substituting therefor a provision directing the defendant to maintain a declining term policy of life insurance for the benefit of the plaintiff, until payment of child support, maintenance, and health insurance is completed, in an amount sufficient to secure those obligations; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Nassau County, for a calculation of the amount of retroactive maintenance and child support arrears from September 19, 2012, giving the defendant appropriate credit for the actual amount of the carrying charges on the marital home and expensespaid by the defendant pursuant to the pendente lite order, and taking into account any pendente lite maintenance and child support paid by the defendant during the pendency of the action, and to determine an appropriate amount of life insurance with death benefits adequate to secure the payment of the maintenance, child support, and health insurance for as long as the defendant is obligated to pay maintenance, child support, and health insurance, and for the entry of an appropriate amended judgment thereafter.

The parties were married in 1997 and have two children, a son, who resides with the plaintiff, and a daughter, who resides with the defendant. The son became severely disabled at the age of five, and he has required constant, round-the-clock care. He attends school with a private duty nurse, and has had nursing care for most of the time he has spent at home. That care is paid for by Medicare and supplemented by both parents for any gaps in coverage.

Prior to their marriage, the parties signed a prenuptial agreement in which they agreed that property already held, or to be acquired, in a spouse's individual name would remain his or her separate property. The defendant had a highly lucrative career in the financial industry, and the plaintiff last worked as an ultrasound technician before the marriage.

On September 19, 2012, the plaintiff commenced this action for a divorce and ancillary relief. Following a nonjury trial, the Supreme Court, inter alia, (1) awarded the plaintiff maintenance in the sum of only $140,000 per year until the earliest of May 1, 2022, the death of either party, or the plaintiff's remarriage, (2) directed the defendant to pay maintenance and child support commencing on the first day of the first month following the entry of the judgment and declined to make the award of maintenance and child support retroactive to the commencement of the action, (3) directed the defendant to maintain life insurance in the sum of only $500,000, naming the plaintiff as the beneficiary for as long as the defendant was obligated to pay maintenance or child support, and (4) gave a credit to the defendant in the sum of $53,758.25 for the plaintiff's withdrawals from the parties' joint Merrill Lynch account, and equally divided the remainder of the account between the parties as of the date of trial. The plaintiff appeals from those portions of the judgment, as well as from the court's refusal to admit into evidence a videotape of the parties' son.

Upon the commencement of a divorce action, the marital partnership ceases for the purposes of equitable distribution of property (see Anglin v. Anglin, 80 N.Y.2d 553, 557, 592 N.Y.S.2d 630, 607 N.E.2d 777 ; Heymann v. Heymann, 102 A.D.3d 832, 833, 958 N.Y.S.2d 448 ). Although, upon the termination of the marital partnership, a spouse may use marital property to satisfy joint familial obligations (see Heymann v. Heymann, 102 A.D.3d at 833, 958 N.Y.S.2d 448 ; Raynor v. Raynor, 68 A.D.3d 835, 838, 890 N.Y.S.2d 601 ; cf. Weintraub v. Weintraub, 79 A.D.3d 856, 857, 912 N.Y.S.2d 674 ), one spouse is accountable to the other spouse for use of marital property to satisfy individual obligations (see Heymann v. Heymann, 102 A.D.3d at 833–834, 958 N.Y.S.2d 448 ). Here, we agree with the Supreme Court's determination to hold the parties accountable for the funds they withdrew from their joint account for their separate obligations after the commencement of the action. Moreover, we agree with the court's determination that the remaining funds that the defendant withdrew were used to pay the parties' joint obligations (see id., at 833, 958 N.Y.S.2d 448 ; Raynor v. Raynor, 68 A.D.3d at 838, 890 N.Y.S.2d 601 ).

" ‘[T]he 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’ " ( Castello v. Castello, 144 A.D.3d 723, 726, 41 N.Y.S.3d 250, quoting Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 ; see Fenech v. Fenech, 141 A.D.3d 683, 685, 35 N.Y.S.3d 471 ). " ‘[F]actors to be considered in [the determination of] 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’ " ( Castello v. Castello, 144 A.D.3d at 726, 41 N.Y.S.3d 250, quoting Gordon v. Gordon, 113 A.D.3d 654, 654–655, 979 N.Y.S.2d 121 ; see Domestic Relations Law former § 236[B][6][a] ). Another factor considered in a marriage of long duration is whether the party seeking maintenance was the primary homemaker and caregiver for the parties' children during the marriage (see Castello v. Castello, 144 A.D.3d at 726, 41 N.Y.S.3d 250 ). 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 id. ).

Here, we agree with the Supreme Court's determination, upon its consideration of all of the factors set forth in Domestic Relations Law former § 236(B)(6)(a), that, notwithstanding the plaintiff's care of their disabled son, an award of lifetime maintenance was not appropriate. Nevertheless, the court improvidently exercised its discretion in awarding the plaintiff maintenance only until May...