Marino v. Marino

183 A.D.3d 813

123 N.Y.S.3d 638

Donna MARINO, Respondent-Appellant,

v.Frank MARINO, Appellant-Respondent.

2018–14738

2018–14881

2018–14882

Index No. 202775/13

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

Argued—February 7, 2020

May 20, 2020

Law Offices of Russell I. Marnell, P.C., East Meadow, NY, for appellant-respondent.

Gassman Baiamonte Gruner, P.C., Garden City, N.Y. (Stephen Gassman and Karen Bodner of counsel), for respondent-appellant.

Jill C. Stone, Garden City, NY, attorney for the children.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from (1) an amended decision of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered October 30, 2018, (2) an order of the same court entered October 31, 2018, and (3) stated portions of a judgment of divorce of the same court entered November 5, 2018, and the plaintiff cross-appeals from stated portions of the judgment of divorce. The order granted the plaintiff's motion pursuant to CPLR 4404(b) to set aside a decision of the same court dated August 6, 2018, determining that the defendant was entitled to an award of counsel fees in the sum of $72,476.95 and determined that the defendant was entitled to an award of counsel fees in the sum of only $30,551.95. The judgment of divorce, insofar as appealed from, upon decisions of the same court dated February 16, 2018, and August 6, 2018, made after a nonjury trial, and a separate decision also dated August 6, 2018, inter alia, (1) set forth a parental access schedule for the defendant, (2) failed to award the defendant maintenance, (3) directed the defendant to pay the sum of $1,425 per month in basic child support and 34% of certain add-on expenses, (4) failed to direct the plaintiff to pay for the defendant's health insurance, (5) awarded the plaintiff exclusive use and occupancy of the marital residence until the parties' youngest child attained the age of 18 and awarded the defendant 40% of its stipulated value, to be paid within 90 days after the youngest child's 18th birthday or within 10 days after the closing of a sale, (6) failed to award the defendant a credit for the monies spent down from the parties' investment accounts during the pendency of the action and awarded the defendant only 35% of the value of the Morgan Stanley and Wells Fargo investment accounts, and (7) directed the plaintiff to pay counsel fees pursuant to the separate decision dated August 6, 2018. The judgment of divorce, insofar as cross-appealed from, inter alia, (1) awarded the plaintiff child support in the sum of only $1,425 per month and directed that the defendant only pay 34% of certain add-on expenses, (2) failed to direct the defendant to pay his pro rata share of the children's unreimbursed dental expenses and summer activities, (3) awarded the defendant 50% of the value of the parties' vacation home in Pennsylvania, and (4) awarded the defendant counsel fees.

ORDERED that the appeal from the amended decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 [1984] ); and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment of divorce is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the defendant, contingent upon him having in place any necessary ancillary support, aid, and services that the parties' two youngest children require while in his care, parental access with the two youngest children on alternating weekends from Friday at 6:00 p.m. to Saturday at 4:00 p.m. and Sunday from 2:00 p.m. to 6:00 p.m., and substituting therefor a provision awarding the defendant, contingent upon him having in place any necessary ancillary support, aid, and services that the parties' two youngest children require while in his care, parental access with the two youngest children on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., (2) by deleting from the tenth decretal paragraph thereof the words "upon James Ryan Marino attaining the age of eighteen (18), the Defendant shall be entitled to 40% of One Million Two Hundred Thousand Dollars ($1,200,000), and that the Plaintiff shall have the option of either selling the marital residence and providing the Defendant with Four Hundred and Eighty Thousand Dollars ($480,000), or to buy out the Defendant's share by paying him $480,000 within ninety (90) days after James' 18^th birthday," and substituting therefor the words "upon James Ryan Marino attaining the age of eighteen (18), the Plaintiff shall have the option of either selling the marital residence and providing the Defendant with 40% of the net proceeds after payment of usual and customary closing costs, or buying out the Defendant's share by paying him 40% of the fair market value of the marital residence within ninety (90) days after James' 18th birthday," (3) by adding a provision thereto directing the defendant to pay his pro rata share, 34%, of the children's unreimbursed dental expenses and his pro rata share, 34%, of the children's reasonable summer camp expenses, required as and for child care in order for the plaintiff to be employed, (4) by deleting from the sixth decretal paragraph thereof the words "(but not dental expenses)," and (5) by deleting the provision thereof directing that counsel fees shall be paid in accordance with the separate decision dated August 6, 2018, and substituting therefor a provision directing the plaintiff to pay counsel fees in the sum of $30,551.95 to the defendant's counsel as set forth in the amended decision entered October 30, 2018; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of divorce in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of divorce (see CPLR 5501[a][1] ).

The parties were married on August 6, 1994, and have five children. The plaintiff commenced this action for a divorce and ancillary relief by filing a summons with notice on October 10, 2013. The Supreme Court held bifurcated nonjury trials on custody and financial issues in 2017 and 2018, respectively.

The custody trial addressed the defendant's conversion initially from Catholicism to the Lutheran faith, and then to the Jehovah's Witness faith, while the plaintiff and children remained Lutheran after following the defendant from Catholicism to the Lutheran faith. After the custody trial, the plaintiff was awarded sole custody of the minor children and the defendant was awarded parental access with the parties' two youngest children, inter alia, on alternating weekends from Friday at 6:00 p.m. to Saturday at 4:00 p.m. and Sunday from 2:00 p.m. to 6:00 p.m.

After the trial on financial issues, the Supreme Court, inter alia, denied the defendant's request for maintenance and health insurance, imputed $130,000 in annual income to the defendant, and directed him to pay $1,425 per month in basic child support and 34% of certain add-on expenses. The court also awarded the plaintiff exclusive use and occupancy of the marital residence until the youngest child turned 18, awarded the defendant 40% of the stipulated value of the marital residence, awarded the defendant 50% of the value of the parties' vacation home in Pennsylvania, and denied the defendant's request for a credit for monies spent down from the parties' joint investment accounts during the pendency of the action.

After the trials, in a decision dated August 6, 2018, the Supreme Court determined that the plaintiff was required to pay 65% (or $72,476.95) of the defendant's counsel fees. The plaintiff moved pursuant to CPLR 4404(b) to set aside the counsel fees decision. In an order entered October 31, 2018, the court granted the plaintiff's motion, noting that it had erred in the counsel fees decision because it only meant for the plaintiff to pay 65% (or $30,551.95) of the defendant's outstanding balance of counsel fees, not the total amount requested. An amended decision, reflecting the change, was entered on October 30, 2018.

The parties' judgment of divorce was entered on November 5, 2018, but the judgment did not incorporate the counsel fees award determined in the amended decision entered October 30, 2018. The defendant appeals, and the plaintiff cross-appeals, from stated portions of the judgment of divorce.

We disagree with the Supreme Court's determination to limit the defendant's parental access on alternating weekends with the two youngest children from Friday at 6:00 p.m. to Saturday at 4:00 p.m. and Sunday from 2:00 p.m. to 6:00 p.m. "The paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances" ( Matter of Velasquez v. Kattau, 167 A.D.3d 912, 913, 90 N.Y.S.3d 125 [2018] ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). "Parental access is a ‘joint right of the noncustodial parent and of the child’ " ( Matter of Cuccia–Terranova v. Terranova, 174 A.D.3d 528, 529, 107 N.Y.S.3d 28 [2019], quoting Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377 [1981] ). "Parental access with a noncustodial parent is presumed to be in the best interests of the child" ( Matter of Parris v. Wright, 170 A.D.3d 731, 731, 96 N.Y.S.3d 60 [2019] ). Here, the record failed to demonstrate a basis for interrupting and impinging upon the defendant's meaningful parental access by directing that he return the two...