ANTHONY C. MUSACCHIO, Appellant,
CHRISTINE M. MUSACCHIO, Respondent.
Calendar Date: May 21, 2013
Stevan A. Nosonowitz, Pleasant Valley, for appellant.
Steven Nussbaum, New Paltz, for respondent.
Before: Rose, J.P., Spain, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Work, J.), entered February 17, 2012 in Ulster County, ordering, among other things, primary physical custody of the parties' children to defendant and equitable distribution of the parties' marital property, upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1990 and are the parents of three children (born in 1993, 1995 and 2001). In April 2009, the husband commenced this divorce action and, after the wife did not contest his allegations of constructive abandonment, the remaining issues proceeded to trial. Supreme Court, among other things, awarded the parties joint legal custody of the children with primary physical custody to the wife, directed the husband to pay the wife a distributive award in the amount of $143, 705.22, awarded the wife $4, 858.34  in maintenance per month for 7½ years and $3, 141.66 in child support per month. The husband now appeals. 
Initially, the husband's arguments that Supreme Court erred in failing to appoint an attorney for the children, order forensic evaluations or conduct in camera interviews of the children prior to reaching its custody determination are not preserved for appellate review because, when given the opportunity, he failed to request any of the foregoing (see Dana-Sitzer v Sitzer, 48 A.D.3d 354, 354 ; see also Gerson v Gerson, 57 A.D.3d 606, 607-608 ; Matter of Thompson v Thompson, 267 A.D.2d 516, 519 ). While trial courts are strongly encouraged to appoint an attorney for the children in contested custody matters, "'such appointment is discretionary, not mandatory'" (Matter of Ames v Ames, 97 A.D.3d 914, 916 , lv denied 20 N.Y.3d 852 , quoting Lips v Lips, 284 A.D.2d 716, 716 ; see Family Ct Act § 249 [a]; Moor v Moor, 75 A.D.3d 675, 679 ; Matter of Swett v Balcom, 64 A.D.3d 934, 936 , lv denied 13 N.Y.3d 710 ). Notably, at the beginning of the long delayed trial, the husband — for the first time — apprised the court that his pretrial proposal to settle the issues of custody and visitation had been withdrawn. The wife's counsel then requested that the court appoint an attorney to represent the children while the husband's counsel, rather than join that request, insisted that the trial proceed without interruption. Although the wife's request was ultimately denied, the court noted that it would have appointed an attorney for the children had it known that custody was an issue. Under these circumstances, and in light of the evidence in the record supporting the court's well-reasoned decision resolving custody and visitation, we cannot say that the court abused its discretion.
To the extent that the husband argues that Supreme Court's award of primary physical custody of the children to the wife lacks a sound and substantial basis in the record, we cannot agree. It is well settled that the overriding concern in custody matters is the best interests of the children, requiring the court to consider "all relevant factors including the parents' ability to provide a stable home environment for the child[ren], the child[ren's] wishes, the parents' past performance, relative fitness, ability to guide and provide for the child[ren's] overall well-being, and the willingness of each parent to foster a relationship with the other parent" (Helm v Helm, 92 A.D.3d 1164, 1166  [internal quotation marks and citations omitted]; see Matter of Rundall v Rundall, 86 A.D.3d 700, 701 ; Matter of Lynch v Gillogly, 82 A.D.3d 1529, 1530 ). The trial court's determination in that respect will not be disturbed so long as it is supported by a sound and substantial basis in the record (see Helm v Helm, 92 A.D.3d at 1166; Matter of Rundall v Rundall, 86 A.D.3d at 701-702).
While it is clear that the husband has been a loving and supportive parent, the record establishes that the wife was, and always has been, the children's primary caretaker. As such, she was actively involved in their schooling, activities and medical care. The husband, on the other hand, traveled extensively for his career in the financial industry and often worked late hours. The court found that awarding primary physical custody to the wife would, among other things, maintain the greatest stability for the children, noting that the wife was genuinely willing to foster the husband's relationships with the children. According due deference, we find that the award of primary physical custody to the wife was in the children's best interests (see Matter of Christina MM. v George MM., 103 A.D.3d 935, 937 ; Helm v Helm, 92 A.D.3d at 1166). Likewise, mindful that "Supreme Court is afforded wide discretion in crafting an appropriate visitation schedule" (DeLorenzo v DeLorenzo, 81 A.D.3d 1110, 1112 , lv dismissed 16 N.Y.3d 888 ), we discern no abuse of discretion in the court's parenting schedule — providing the father with one weeknight per week, every other weekend and as the parties can agree, which provides him frequent and regular access to the children (see Matter of Maziejka v Fennelly, 3 A.D.3d 748, 749 ).
While the husband does not challenge Supreme Court's overall calculation of his child support obligation, he does contend that the court erred by ordering him to pay the full cost of the children's health, dental and vision insurance, childcare and all unreimbursed copays until the wife's income exceeds $50, 000. We agree that the wife should have been ordered to pay her pro rata share (3.458% at the time of trial) of these expenses, and we modify accordingly (see Domestic Relations Law § 240 [1-b] [c] ,  [i], [ii] [v]; Hughes v Hughes, 79 A.D.3d 473, 476 ; Matter of Dudla v Coyle, 22 A.D.3d 990, 991 ; Nichols v Nichols, 19 A.D.3d 775, 778 ; cf. Matter of Anonymous v Anonymous, 31 A.D.3d 955, 957 ).
We next consider the husband's arguments concerning Supreme Court's separate property determinations and distribution of the parties' marital property. First, although the husband's Chase savings account was held in his name alone, it was opened during the marriage and, thus, it was his burden to prove that it was separate property (see Vertucci v Vertucci, 103 A.D.3d 999, 1004 ; Judson v Judson, 255 A.D.2d 656, 657 ; Seidman v Seidman, 226 A.D.2d 1011, 1012 ). While it is undisputed that, prior to the marriage, the husband received approximately $132, 000 as a personal injury award — which would constitute separate property (see Domestic Relations Law § 236 [B] [d] ) — his testimony concerning the location of these funds was not credible or consistent . As the husband failed to carry his burden to establish that the savings account was separate property, it was properly classified and equitably distributed as marital property (see Vertucci v Vertucci, 103 A.D.3d at 1004; Murray v Murray, 101 A.D.3d 1320, 1322 , lv dismissed 20 N.Y.3d 1085 ; Steinberg v Steinberg, 59 A.D.3d 702, 704 ; compare D'Ambra v D'Ambra, 94 A.D.3d 1532, 1535 ). On the other hand, the husband's more consistent testimony that $9, 695.92 of his IRA account consisted of premarital earnings was uncontroverted by the wife and conceded in her written summation; thus, the husband is entitled to be credited that amount (see Keil v Keil, 85 A.D.3d 1233, 1235 ; London v London, 21 A.D.3d 602, 604 ) and, accordingly, the value of the IRA account subject to the qualified domestic relations order is $156, 945.89. Additionally, the husband correctly points out an error in the court's calculation of the wife's distributive award, which should equal $148, 938.09 rather than $143, 705.22.
With regard to the division of marital property, "there is no requirement that the distribution of each item of marital property be on an equal or 50-50 basis" (Quinn v Quinn, 61 A.D.3d 1067, 1069  [internal quotation marks and citation omitted]; see Lurie v Lurie, 94 A.D.3d 1376, 1378 ). Moreover, "[a] trial court has substantial discretion to fashion [equitable distribution] awards based on the circumstances of each case, and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors" (Vertucci v Vertucci, 103 A.D.3d at 1001 [internal quotation marks and citation omitted]; see Williams v Williams, 99 A.D.3d 1094, 1096 ).
In light of the disparity in the parties' financial circumstances and their future earning potential, as well as the wife's loss of inheritance rights and health insurance, factors that were considered by Supreme Court, and considering that "marital property is distributed in light of the needs and circumstances of the parties" (Brzuszkiewicz v Brzuszkiewicz, 28 A.D.3d 860, 861  [internal quotation marks and citation omitted]), the court's decision not to award the husband a portion of the wife's insubstantial IRA and life insurance policy was not an abuse of discretion. It would, however, be more practical and equitable for the wife to equally split the payments that the husband will receive from his AIG pension annuity should he reach the age of 65, subject to a qualified domestic relations order, rather than requiring him to purchase a separate annuity for her (see e.g. Malin v Malin, 172 A.D.2d 721, 722 ). Finally, as the husband volunteered to absorb the full ...