Marin v. Marin

148 A.D.3d 1132

51 N.Y.S.3d 111

Rhonda MARIN, appellant,

v.Glen MARIN, respondent.

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

March 29, 2017.

Bartle, McGrane, Duffy & Jones, LLP, Troy, NY (James P. Curran of counsel), for appellant.

L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

Appeal by the plaintiff from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 11, 2013. The judgment of divorce, inter alia, (1) upon a decision of that court dated June 26, 2013, made after a nonjury trial, directed the defendant to pay the plaintiff maintenance in the sum of $3,500 per month for a period of 24 months commencing on the first Friday following the sale of the marital residence, declined to direct the defendant to contribute to the children's college expenses, made an equitable distribution of the parties' marital assets, and declined to award the plaintiff pendente lite arrears, and (2) upon an order of that court dated June 27, 2013, declined to award the plaintiff an attorney's fee.

ORDERED that the appeal from so much of the judgment as declined to award the plaintiff pendente lite arrears is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof directing the defendant to pay the plaintiff maintenance in the sum of $3,500 per month for a period of 24 months, and substituting therefor provisions (a) directing the defendant to pay the plaintiff maintenance in the sum of $5,000 per month until the emancipation of the parties' second child, at which time the defendant shall pay the plaintiff maintenance in the sum of $7,000 per month, and (b) providing that the defendant's maintenance obligation will terminate seven years from the first Friday after the closing on the marital residence, and

(2) by deleting the provision thereof declining to award the plaintiff an attorney's fee, and substituting therefor a provision awarding the plaintiff an attorney's fee in the sum of $118,000; as so modified, the judgment is affirmed insofar as reviewed, with costs to the plaintiff.

The parties were married in July1989, and have two children together, born in 1992 and 1996. After the birth of their first child in 1992, the plaintiff stopped working outside the home and has been the primary caregiver of the children. The defendant, a doctor of osteopathy with his own medical practice, has been the sole source of financial support for the family since that time. In June 2008, the plaintiff commenced this action for a divorce and ancillary relief.

During the ensuing nonjury trial, the parties stipulated that the Supreme Court would decide their respective applications for counsel fees on written submissions. After the trial, the court issued a decision dated June 26, 2013, wherein it determined the ancillary issues of, inter alia, equitable distribution, maintenance, and child support, and denied the plaintiff's application for pendente lite arrears. The court issued a separate order dated June 27, 2013, denying the parties' respective applications for counsel fees. The court thereafter issued a judgment of divorce entered December 11, 2013, which, inter alia, (1) imputed income to the defendant in the sum of $350,000, (2) awarded the plaintiff maintenance in the sum of $3,500 per month for a period of 24 months, (3) awarded the plaintiff child support in the sum of $4,362.46 per month for the parties' younger child, (4) made an equitable distribution of the parties' marital property and debts, (5) declined to direct the defendant to pay any college expenses for the children, (6) declined to award the plaintiff pendente lite arrears, and (7) declined to award the plaintiff an attorney's fee. The plaintiff appeals from stated portions of the judgment of divorce.

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in imputing income of only $350,000 to the defendant. " ‘A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed’ " (Elsayed v. Edrees, 141 A.D.3d 503, 505, 35 N.Y.S.3d 411, quoting Matter of Thomas v. DeFalco, 270 A.D.2d 277, 278, 703 N.Y.S.2d 530 ; see Lamparillo v. Lamparillo, 130 A.D.3d 580, 581, 12 N.Y.S.3d 296 ; Spiegel–Porco v. Porco, 127 A.D.3d 847, 849, 6 N.Y.S.3d 595 ; Cusumano v. Cusumano, 96 A.D.3d 988, 989, 947 N.Y.S.2d 175 ). In doing so, a court may consider, among other factors, the party's "educational background, past earnings, and employment potential" (Balaj v. Balaj, 136 A.D.3d 672, 674, 25 N.Y.S.3d 244 ; see Kessler v. Kessler, 118 A.D.3d 946, 948, 991 N.Y.S.2d 43 ). Here, the defendant's adjusted gross income, as reported on his 2007, 2008, 2009, 2010, and 2011 federal income tax returns, was $338,639, $266,594, $319,332, $243,560, and $123,074, respectively. The court imputed income to the defendant in the sum of $350,000, apparently attributing the additional income to substantial amounts of cash generated by his medical practice over the years. While at one time the defendant's income was substantially higher than $350,000, his federal income tax returns filed from 2001 through 2011 reflect a steady decline in his adjusted gross income. The court found that the defendant testified credibly that this decline occurred because in or around 1999 or 2000, his medical practice began to suffer financially due to the advent of managed care. Although the plaintiff asserts that the defendant's testimony was not credible, the trial court's resolution of credibility issues is entitled to great deference on appeal since it had the opportunity to view the demeanor of the witnesses and is "in the best position to gauge their credibility" (Canzona v. Canzona, 142 A.D.3d 1030, 1032, 38 N.Y.S.3d 42 ; see Cervera v. Bressler, 126 A.D.3d 924, 925, 6 N.Y.S.3d 278 ; DiPalma v. DiPalma, 112 A.D.3d 663, 664, 977 N.Y.S.2d 276 ; Morales v. Inzerra, 98 A.D.3d 484, 485, 949 N.Y.S.2d 433 ). There is no basis to disturb the court's credibility determination in this case.

We also reject the plaintiff's contention that since some of the proceeds from certain loans were used to finance the defendant's medical practice, which was not treated as marital property, the Supreme Court should have allocated this debt to the defendant as his separate responsibility, rather than allocating it equally between the parties. "The Supreme Court is given broad discretion in allocating the assets and debts of the parties to a marriage, and may consider the entirety of the marital estate in apportioning responsibility for debts" (Grabelsky v. Handler, 127 A.D.3d 1141, 1142, 8 N.Y.S.3d 367 ; see DiFiore v. DiFiore, 87 A.D.3d 971, 974–975, 933 N.Y.S.2d 39 ; Corless v. Corless, 18 A.D.3d 493, 494, 795 N.Y.S.2d 273 ). "While outstanding financial obligations incurred during the marriage which are not solely the liability of either spouse may be deemed marital obligations, a financial obligation incurred by one party in pursuit of his or her separate interests should remain that party's separate liability" (Corless v. Corless, 18 A.D.3d at 494, 795 N.Y.S.2d 273 ). Here, the funds at issue were used to benefit the defendant's medical practice, which was the sole means of financial support for the entire family. Therefore, under the circumstances, it cannot be said that this debt was incurred for the defendant's sole benefit. As such, contrary to the plaintiff's contentions, the court's decision to distribute this debt equally among the parties was not an improvident exercise of discretion.

We agree with the plaintiff...