Westbrook v. Westbrook

164 A.D.3d 939

83 N.Y.S.3d 560

Kristen WESTBROOK, respondent,

v.Peter WESTBROOK, appellant.

2015–06918

Index No. 14004/08

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

Submitted—December 7, 2017

August 29, 2018

Quatela Hargraves & Chimeri, PLLC, Hauppauge, N.Y. (Christopher J. Chimeri, Hauppauge, and James N. Salvage, Jr., Auburn, of counsel), for appellant.

Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (Marlene L. Budd, J.), entered April 14, 2015. The judgment, insofar as appealed from, upon a decision of the same court (Stephen M. Behar, J.) dated December 22, 2014, made after a nonjury trial, awarded the plaintiff maintenance in the sum of $2,000 per month for the period of January 1, 2015, through June 1, 2019, awarded the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant's interest in his business, failed to award the defendant a credit against the proceeds of the sale of the marital residence for payments made by him to reduce the principal balance of a first mortgage and the principal balance of a home equity line of credit on the marital residence, and failed to direct that the parties are equally responsible for the entire remaining balance of the mortgage and the home equity line of credit on the marital residence.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by adding thereto a provision awarding the defendant a credit against the proceeds of the sale of the marital residence for 50% of the payments made by him beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the home equity line of credit on the marital residence, and (2) by adding thereto a provision directing that the parties are equally responsible for the balance of the home equity line of credit on the marital residence until entry of the judgment of divorce; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amount that the defendant expended beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the interest only home equity line of credit on the marital residence, and for the entry of an appropriate amended judgment thereafter.

The parties were married on July 11, 1998. Prior to the marriage, the defendant's mother gave her home to the defendant and his siblings, and the defendant owned a one-third share of the value of the home as a result. In or around 1999, the defendant purchased the remaining two-thirds share of the value of the home from his siblings. Thereafter, the parties resided in the home with their two children, who were born during the marriage, as well as with the plaintiff's child from a prior relationship. In 2001, the defendant started a business called Dunrite Chimney Corp. (hereinafter Dunrite), which performed, among other things, chimney cleaning and masonry repair.

In April 2008, the plaintiff commenced this action for a divorce and ancillary relief. In a pendente lite order dated August 12, 2008, the Supreme Court, inter alia, directed the defendant to pay temporary child support in the sum of $150 per week. The court also directed the defendant to pay a majority of the carrying charges on the marital residence, which included a first mortgage on the two-thirds share of the value of the marital residence that had been purchased from the defendant's siblings, as well as a home equity line of credit (hereinafter HELOC) that was secured by the marital residence. On or about November 24, 2009, the parties executed a stipulation agreeing, inter alia, that the defendant would have exclusive use and occupancy of the marital residence effective December 1, 2009, and that the defendant would pay child support to the plaintiff in the sum of $350 per week commencing on December 1, 2009. Thereafter, the plaintiff moved, inter alia, to increase the defendant's temporary child support obligation. In a pendente lite order dated May 21, 2010, the Supreme Court directed the defendant to pay $700 per week in temporary child support during the pendency of the action.

Following a nonjury trial, the Supreme Court issued a decision after trial, inter alia, awarding the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant's interest in Dunrite, and awarding the plaintiff maintenance in the sum of $2,000 per month for the period of January 1, 2015, through June 1, 2019, when the parties' youngest child turns 18 years old. The court declined to award the defendant a credit for the payments made by him during the pendency of the action to reduce the principal balances of the first mortgage and the HELOC. In addition, the court directed that the marital residence be listed for sale, and that the defendant shall make the payments towards the first mortgage and the HELOC if he continued to reside in the marital residence until the residence was sold. Subsequently, the court issued a judgment of divorce, which, inter alia, awarded the plaintiff the sum of $100,333.33, made the award of maintenance, and incorporated by reference the decision after trial. The defendant appeals from 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’ " ( Galanopoulos v. Galanopoulos, 152 A.D.3d 745, 746, 59 N.Y.S.3d 122, quoting Repetti v. Repetti, 147 A.D.3d 1094, 1096, 47 N.Y.S.3d 447 ; see Kaprov v. Stalinsky, 145 A.D.3d 869, 874, 44 N.Y.S.3d 123 ). "The factors to consider in awarding maintenance include ‘the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’ " ( Horn v. Horn, 145 A.D.3d 666, 668, 43 N.Y.S.3d 395, quoting Kret v. Kret, 222 A.D.2d 412, 412, 634 N.Y.S.2d 719 ). "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting" ( Sansone v. Sansone, 144 A.D.3d 885, 886, 41 N.Y.S.3d 532 [internal quotation marks omitted] ). Here, the Supreme Court providently exercised its discretion in setting the amount and duration of the award of maintenance to the plaintiff.

"A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Aloi v. Simoni, 82 A.D.3d 683, 685, 918 N.Y.S.2d 506 [internal quotation marks omitted] ). "Equitable distribution is ‘based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker’ " ( K. v. B., 13 A.D.3d 12, 17, 784 N.Y.S.2d 76, quoting O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712 ). "The distribution of marital assets depends not only on the financial contribution of the parties ‘but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home’ " ( K. v. B., 13 A.D.3d at 17, 784 N.Y.S.2d 76, quoting Brennan v. Brennan, 103 A.D.2d 48, 52, 479 N.Y.S.2d 877 ; see Repetti v. Repetti, 147 A.D.3d at 1098, 47 N.Y.S.3d 447 ).

Here, the Supreme Court providently exercised its discretion in awarding the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant's interest in Dunrite. The court credited, among other things, the plaintiff's testimony that for the first few years after the husband began operating Dunrite, she contributed towards the business by helping with the scheduling of employees, assisting with some of the billing, answering the work phone during the day, and reviewing invoices at the end of the day. There is no basis to disturb the court's credibility determination, particularly with respect to the plaintiff's testimony regarding...