Headwell v. Headwell

198 A.D.3d 1130

156 N.Y.S.3d 491

Teresa L. HEADWELL, Respondent,

v.Roy J. HEADWELL, Appellant.

531405

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

Calendar Date: September 15, 2021

Decided and Entered: October 21, 2021

Arquette Law Firm, PLLC, Clifton Park (Tammy J. Arquette of counsel), for appellant.

Law Office of Eileen Stiglmeier, Troy (Eileen M. Stiglmeier of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the Supreme Court (Michelini, J.), entered March 24, 2020 in Washington County, granting, among other things, plaintiff a divorce, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1994 and have three children (born in 1995, 2000 and 2002). The wife commenced this divorce action in 2018, after which the husband vacated the marital residence and the unemancipated children remained in the wife's care. She then moved for a variety of temporary relief that culminated in a February 2019 order in which Supreme Court directed the husband to temporarily pay, as is relevant here, $2,737 a month in spousal maintenance, $2,605 a month in child support, and the carrying costs for the marital residence. Upon the husband's motion for renewal, reargument or modification, Supreme Court issued a June 2019 order that altered those terms to the extent of directing that the husband pay half of the carrying costs for the marital residence.

At the outset of the nonjury trial that commenced while the husband's motion was pending, the parties placed a stipulation on the record that resolved the issues of grounds, child custody and equitable distribution. Following an unsuccessful last-minute effort by the husband to present expert proof on the tax consequences that the spousal maintenance obligation would have upon him, the trial proceeded on the unresolved issues. Supreme Court thereafter issued a judgment of divorce which, among other things, incorporated the parties’ stipulation and the terms of the decision awarding the wife maintenance for a period of nine years and child support. Supreme Court further directed the husband to maintain health insurance for the children until they reached the age of 21 or, if in college, until graduation. The husband appeals.¹

The husband initially challenges Supreme Court's temporary orders in various respects, but "[a]n order awarding pendente lite relief is only designed to provide temporary relief pending disposition of the matter in a final judgment," and the ones at issue here were superseded when Supreme Court issued the appealed-from judgment ( Flynn v. Flynn, 128 A.D.2d 583, 584, 512 N.Y.S.2d 847 [1987] ; accord Batson v. Batson, 277 A.D.2d 750, 751, 716 N.Y.S.2d 137 [2000] ; see Vickie F. v. Joseph G., 195 A.D.3d 1064, 1065, 149 N.Y.S.3d 671 [2021] ; Kelly v. Kelly, 19 A.D.3d 1104, 1105–1106, 797 N.Y.S.2d 666 [2005], lv dismissed and denied 6 N.Y.3d 803, 812 N.Y.S.2d 440, 845 N.E.2d 1270 [2006] ). Accordingly, as the parties proceeded to a trial that was intended to and did result in a final judgment, the husband's contentions regarding the propriety of those orders are moot (see Kelly v. Kelly, 19 A.D.3d at 1105–1106, 797 N.Y.S.2d 666 ; Prasinos v. Prasinos, 283 A.D.2d 913, 914, 725 N.Y.S.2d 258 [2001] ; Batson v. Batson, 277 A.D.2d at 751, 716 N.Y.S.2d 137 ; compare Calderon v. Esenova, 132 A.D.3d 711, 712, 18 N.Y.S.3d 627 [2015] ).

The husband's related arguments as to how Supreme Court should have factored the temporary awards into the distributive award are unavailing. First, notwithstanding his suggestion to the contrary, the parties’ stipulation addressed the recoupment of carrying costs paid on the marital residence during the pendency of this action, and he is not entitled to an additional credit for those payments (see e.g. Wilson v. Wilson, 309 A.D.2d 1022, 1023, 765 N.Y.S.2d 678 [2003] ).² As for his contention that Supreme Court should have adjusted the distributive award to reflect the purportedly excessive temporary maintenance award, such an adjustment is not mandatory, and it is evident from Supreme Court's roughly equivalent award of durational maintenance that it considered the temporary award to be appropriate (see Johnson v. Chapin, 12 N.Y.3d 461, 465–466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009] ; Johnson v. Johnson, 172 A.D.3d 1654, 1657, 101 N.Y.S.3d 497 [2019] ; Giannuzzi v. Kearney, 127 A.D.3d 1350, 1351, 4 N.Y.S.3d 561 [2015] ; Fox v. Fox, 306 A.D.2d 583, 584, 759 N.Y.S.2d 702 [2003], appeal dismissed 1 N.Y.3d 622, 777 N.Y.S.2d 21, 808 N.E.2d 1280 [2004] ). The husband's remaining arguments with regard to the temporary awards are similarly unpersuasive and, suffice it to say, we perceive no abuse of discretion in Supreme Court's refusal to adjust the distributive award to account for them (see Walker v. Walker, 130 A.D.3d 805, 806, 14 N.Y.S.3d 87 [2015] ; Vantine v. Vantine, 125 A.D.3d 1259, 1263, 4 N.Y.S.3d 375 [2015] ; compare Johnson v. Johnson, 172 A.D.3d at 1657–1658, 101 N.Y.S.3d 497 ). Indeed, "Supreme Court set forth adequate reasons for its distribution of the property and we are unpersuaded that it abused its discretion" on that score in any respect ( Vantine v. Vantine, 125 A.D.3d at 1261, 4 N.Y.S.3d 375 ).

Turning next to the award of durational maintenance, Supreme Court declined to credit the far from compelling account of the husband as to how his income as a commercial airline pilot would precipitously decline from his historic earnings, instead finding that, between those earnings and rental income from a second home that was to be his separate property, he would earn at least $300,000 a year moving forward. Supreme Court further imputed annual income to the wife of $58,800 to reflect the amount that she would be able to earn if she began working full time at her longstanding part-time job, a reasonable expectation given that her role as the primary caregiver for the parties’ children was easing as their youngest child neared adulthood (see Matter of Curley v. Klausen, 110 A.D.3d 1156, 1159, 972 N.Y.S.2d 743 [2013] ). Supreme Court's credibility assessments are entitled to deference and, having set forth a basis for imputation that is supported by the record and then articulating how the statutory factors justified an amount of maintenance that was an upward adjustment from the guideline obligation for a period within the guideline range, we perceive no abuse of discretion in its direction that the husband pay maintenance to the wife in the amount of $2,800 a month for a period of nine years (see Domestic Relations Law § 236[B][6][e], [f] ; St. Denny v. St. Denny, 185 A.D.3d 1246, 1248, 127 N.Y.S.3d 638 [2020] ; Mack v. Mack, 169 A.D.3d 1214, 1217, 94 N.Y.S.3d 683 [2019] ).³

Next, we reject the husband's contention that Supreme Court abused its discretion in precluding the report and testimony of his expert on the implications that recent enactments would have on the tax treatment of that maintenance award. The husband failed to file the expert's written report in a timely fashion, however, instead waiting until a few days before trial (see 22 NYCRR 202.16 [g][2]). The wife articulated how she was prejudiced by that belated disclosure, as she was deprived of the opportunity to retain her own expert to review the report and request that the husband, who was in a far superior financial position, pay for that review (see Domestic Relations Law § 237[a] ). Supreme Court accordingly granted the wife's application to preclude the report and potential testimony as untimely, further indicating that it saw no need for expert proof on a legal issue that it was capable of understanding without assistance.⁴ Supreme Court, moreover, left open the possibility that it would revisit the issue should any unexpectedly complex tax issues emerge at trial. Supreme Court has "broad discretion in controlling discovery and disclosure," including the power to preclude the use of a belatedly filed expert report where the delay was willful or caused prejudice to the opposing party, and the foregoing satisfies us that there was no abuse of that discretion here ( Seale v. Seale, 149 A.D.3d 1164, 1165, 51 N.Y.S.3d 647 [2017] [internal quotation marks and citations omitted]; see CPLR 3101[d][1][i] ; 22 NYCRR 202.16 [g][2]; Nathel v. Nathel, 55 A.D.3d 434, 435, 866 N.Y.S.2d 153 [2008] ; Myers v. Myers, 255 A.D.2d 711, 713, 680 N.Y.S.2d 690 [1998] ).

Finally, with regard to the award of child support, remittal is necessary. The husband acknowledges that Supreme Court's decision provides adequate detail to determine that it considered the Child Support Standards Act (see Domestic Relations Law § 240[1–b] ) and applied the child support percentage to the combined parental...