Palmer v. Spadone-Palmer

190 A.D.3d 495

139 N.Y.S.3d 205

Mark E. PALMER, Plaintiff–Respondent,

v.Melina SPADONE–PALMER, Defendant–Appellant.

12824

Index No. 305027/12

Case No. 2020-01157

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

ENTERED: January 12, 2021

The Edelsteins, Faegenburg & Brown, LLP, New York (Adam Edelstein of counsel), for appellant.

Gassman Baiamonte Gruner, PC, Garden City (Rosalia Baiamonte of counsel), for respondent.

Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.

Resettled order for modification of support (postjudgment), Supreme Court, New York County (Alice Schlesinger, J.H.O.), entered January 23, 2020, which, after a trial, inter alia, modified the parties' May 30, 2014 settlement agreement by terminating plaintiff husband's obligation to pay spousal maintenance, terminating his obligation to maintain life insurance for defendant wife's benefit, awarding him downward modification of his obligations as to basic child support and add-ons for the parties' three minor children, and denied the wife's request for reimbursement of certain health insurance premiums, medical expenses, and counsel fees, unanimously affirmed, without costs.

An order or judgment incorporating an agreement providing for maintenance will not be modified without a showing of extreme hardship (see Domestic Relations Law § 236[B][9][b][1] ; Sheila C. v. Donald C., 5 A.D.3d 123, 123–124, 773 N.Y.S.2d 22 [1st Dept. 2004] ). Here, the court properly found that the husband would suffer extreme hardship if held to the maintenance obligations under the settlement agreement.

The wife's primary argument is that the husband's claims of extreme hardship were undermined by the proof of his lavish lifestyle, including significant discretionary expenditures for himself and his then-girlfriend. The wife makes a compelling presentation that the husband did in fact liberally indulge in this regard, but does not show reason to question that, as the trial court observed, such expenditures were funded by disability payments he received from April 2015 through March 2017, a source of funding that came to an undisputed end. As the court recognized, the husband's reckless spending of these amounts was unjustifiable, and should have been used towards the support of his wife and children. However, and most relevant to the hardship analysis, because these payments came to an end, they are not illustrative of the husband's overall financial situation, which considerably worsened from where it had been at the time of the settlement agreement.

The court, moreover, partially compensated the wife for the husband's wrongful expenditures by declining to award him a credit for child support payments in excess of his court-ordered obligations during the period from April 2015 through June 2018. The husband asserts, and the wife does not dispute, that he paid a total of $238,725.81 in such payments.

The wife argues the court also misapprehended the husband's financial situation given income he received from Theseus Strategy Group, but we find the wife has not shown reason to revisit the court's determination that Theseus was most properly accounted for by ascribing $305,000 annual income to the husband, which augmented his stated income of $185,000 by another $120,000, based on the amount of loans he paid back to himself from Theseus.

The husband asserts that a major Theseus receipt of $600,000 was a nonrecurring transaction, and the wife does not show otherwise. She also overstates the certainty of the value of Theseus's coinvestment with MatlinPatterson. She cites to the husband's testimony that the investment might be worth as much as $400,000, but although...