Romeo v. Muenzler-Romeo

169 A.D.3d 845

94 N.Y.S.3d 121

Carmine ROMEO, Appellant,

v.Debra MUENZLER–ROMEO, Respondent.

2017–10149

Index No. 1687/14

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

Submitted—October 25, 2018

February 13, 2019

Law Office of Gambino & Demers, LLC, Poughkeepsie, N.Y. (Thomas M. Gambino of counsel), for appellant.

Law Offices of David J. Squirrell, P.C., Bedford Hills, NY, for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of divorce of the Supreme Court, Dutchess County (Lisa E. Rubenstein, Ct. Atty. Ref.), dated August 3, 2017. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated March 6, 2017, made after a nonjury trial, awarded the defendant maintenance in the sum of $ 1,900 per month for a period of eight years and attorneys' fees in the sum of $ 26,000.

ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs.

The parties were married on August 31, 1995. At the time of the marriage, the plaintiff was retired from the New York City Police Department and receiving a pension. During the marriage, the plaintiff was employed part-time, and the defendant worked as a substitute teacher. In April 2014, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial, the Supreme Court issued a judgment of divorce dated August 3, 2017, which, among other things, awarded the defendant maintenance in the sum of $ 1,900 per month for a period of eight years and attorneys' fees in the sum of $ 26,000. The plaintiff appeals from those portions of the judgment of divorce.

"[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" ( Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 ; see Westbrook v. Westbrook, 164 A.D.3d 939, 942, 83 N.Y.S.3d 560 ; Repetti v. Repetti, 147 A.D.3d 1094, 1096, 47 N.Y.S.3d 447 ).

The factors to consider in awarding maintenance include, among others, the standard of living of the parties during the marriage, the distribution of marital property, the duration of the marriage, the health and present and future earning capacity of both parties, and the ability of the party seeking maintenance to become self-supporting (see Domestic Relations Law former § 236[B][6][a]; Belilos v. Rivera, 164 A.D.3d 1411, 1414, 84 N.Y.S.3d 536 ; Westbrook v. Westbrook, 164 A.D.3d at 942, 83 N.Y.S.3d 560 ; Horn v. Horn, 145 A.D.3d 666, 668, 43 N.Y.S.3d 395 ). Here, contrary to the plaintiff's contention, the Supreme Court considered the relevant statutory factors (see Kumar v. Chander, 149 A.D.3d 709, 711, 51 N.Y.S.3d 177 ) and providently exercised its discretion in awarding the defendant maintenance in the sum of $ 1,900 per month for a period of eight years.

"The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" ( Black v. Black, 140 A.D.3d 816, 816, 33 N.Y.S.3d 379 [internal quotation marks omitted]; see Culen v. Culen, 157 A.D.3d 930, 932, 69 N.Y.S.3d 881 ). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions" ( Mueller v. Mueller, 113 A.D.3d 660, 661, 978 N.Y.S.2d 696 ; see Margolis v. Cohen, 153 A.D.3d 1390, 61 N.Y.S.3d...