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Gordon v. Gordon

Supreme Court of New York, Second Department

January 15, 2014

Lisa Gordon, appellant,
v.
Laurence Gordon, respondent. Index No. 202475/06

Blodnick, Fazio & Associates, P.C., Garden City, N.Y. (Edward K. Blodnick and Jessica M. Mannix of counsel), for appellant.

Koopersmith Klein LLC, Garden City, N.Y. (Glenn S. Koopersmith, Kenneth Koopersmith, and Arnold Klein of counsel), for respondent.

RANDALL T. ENG, P.J., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, L. PRISCILLA HALL, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals (1) from a corrected decision of the Supreme Court, Nassau County (O'Connell, J.H.O.), dated March 23, 2012, made after a nonjury trial, and (2), as limited by her brief, from so much of a judgment of the same court entered May 4, 2012, as, upon, inter alia, the corrected decision, awarded her maintenance only in the sum of $1, 000 per week commencing on February 10, 2012, through October 31, 2012, $1, 100 per week commencing November 1, 2012, through the closing on the sale of the former marital residence, and $1, 775 per week thereafter until she attains the age of 62, awarded her only 20% of the defendant's interest in Floral Management Realty Corporation, and failed to direct the defendant to pay all unreimbursed health care expenses of the children.

ORDERED that the appeal from the corrected decision dated March 23, 2012, is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 A.D.2d 509, 509-510); and it is further, ORDERED that the judgment is modified, on the law, by adding a provision thereto directing the defendant to pay 100% of all reasonable unreimbursed health care expenses of the parties' children; as so modified, the judgment is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendant.

" [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'" (Giokas v Giokas, 73 A.D.3d 688, 688, quoting Wortman v Wortman, 11 A.D.3d 604, 606). The factors to be considered in a maintenance award are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties (see Domestic Relations Law § 236[B][6][a]; Meccariello v Meccariello, 46 A.D.3d 640, 641-642; Griggs v Griggs, 44 A.D.3d 710, 711-712). "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" (Sirgant v Sirgant, 43 A.D.3d 1034, 1035; see Scarlett v Scarlett, 35 A.D.3d 710, 711). Here, considering the relevant factors, the amount and duration of the award of maintenance was a provident exercise of discretion.

Contrary to the plaintiff's contentions, the trial court providently exercised its discretion in awarding her 20% of the defendant's interest in Floral Management Realty Corporation. The award of 20% "takes into account the plaintiff's minimal direct and indirect involvement in the defendant's company, while not ignoring her contributions as the primary caretaker for the parties' children, which allowed the defendant to focus on his business" (Baron v Baron, 71 A.D.3d 807, 809; see Ventimiglia v Ventimiglia, 307 A.D.2d 993, 994; Wagner v Dunetz, 299 A.D.2d 347, 349).

The trial court, however, erred by not addressing the payment of the unreimbursed health care expenses of the parties' children. Generally, the obligation to pay those expenses is to be pro-rated in the same proportion as each parent's income is to the combined parental income (see Domestic Relations Law § 240[1-b][c][5][v]). Here, the trial court determined that the defendant's income represented 100% of the combined parental income. Consequently, we modify the judgment to include a provision directing the defendant to pay 100% of the children's unreimbursed reasonable health care expenses (see Domestic Relations Law § 240[1-b][c][5]; Griggs v Griggs, 44 A.D.3d at 714; Sicurelli v Sicurelli, 285 A.D.2d 541, 542-543).

We decline to consider the plaintiff's request for an award of an attorney's fee incurred in connection with this appeal. This request should be addressed in the first instance to the Supreme Court (see Smulevitz v Smulevitz, 91 A.D.3d 752, 753; Kane v Rudansky, 309 A.D.2d 785, 785).

ENG, P.J., DICKERSON, CHAMBERS and HALL, JJ., concur.


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