J. Wigler, Great Neck, NY (Eyal Talassazan of counsel), for
Vesselin Mitev, Miller Place, NY, for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN HECTOR D. LASALLE VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Suffolk County (John C.
Bivona, J.), entered August 12, 2015. The judgment, upon a
decision of that court dated January 8, 2015, insofar as
appealed from, inter alia, awarded the plaintiff only 30% of
the defendant's City of Glen Cove police department
pension, 40% of the defendant's National Rifle
Association pension, and maintenance in the sum of $100 per
week for a period of five years retroactive to the date of
commencement of the action, failed to award the plaintiff any
retroactive child support or a portion of the defendant's
401K account, failed to require the defendant to pay any of
the parties' pre-commencement credit card debt,
unreimbursed medical expenses, or college costs, directed
that the marital residence be sold and the proceeds be
divided equally after the defendant received a 4% fee for
acting as receiver on the sale, and awarded the plaintiff
only $20, 000 in attorney's fees.
that the judgment is modified, on the facts and in the
exercise of discretion, (1) by deleting the provision thereof
awarding the plaintiff maintenance in the sum of $100 per
week for 5 years retroactive to the commencement of the
action, and substituting therefor a provision awarding the
plaintiff maintenance in the sum of $100 per week for 10
years retroactive to the commencement of the action, (2) by
adding a provision thereto directing the defendant to pay
$25, 000 of the parties' pre-commencement credit card
debt, and (3) by deleting the provision thereof directing
that the defendant receive a 4% fee for acting as receiver on
the sale of the marital residence; as so modified, the
judgment is affirmed insofar as appealed from, without costs
plaintiff former wife and the defendant former husband were
married in 1985 and have two children together. On September
7, 2010, the plaintiff commenced this action against the
defendant for a divorce and ancillary relief. The case
proceeded to trial. A judgment was entered on August 12,
2015, from which the plaintiff appeals.
plaintiff contends that the Supreme Court improperly awarded
her maintenance of a limited duration, rather than lifetime
maintenance. The 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 unique facts
(see Gafycz v Gafycz, ___ A.D.3d ___, 2017 NY Slip
Op 01537, *1 [2d Dept 2017]). The court may order maintenance
in such amount as justice requires, considering, among other
factors, 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 the 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 (see Domestic Relations Law §
236[B][a]; Chaudry v Chaudry, 95 A.D.3d 1058,
1059). Taking these factors into consideration here, the
court providently exercised its discretion in awarding the
plaintiff maintenance in the sum of $100 a week for a limited
duration only. Nevertheless, under the circumstances of this
case, we deem it appropriate to extend the duration of the
maintenance from 5 years to 10 years (cf. Cukier v
Cukier, 54 A.D.3d 385, 386).
considering the circumstances of the case, the Supreme Court
providently exercised its discretion in awarding the
plaintiff only 30% of the defendant's City of Glen Cove
police department pension for the period of time the parties
were married and a 40% share of the defendant's pension
from the National Rifle Association (see Domestic
Relations Law § 236[B][d], ).
plaintiff is correct that she was entitled to child support
for the parties' children until they were emancipated in
2012 and 2013, respectively. However, taking into account the
sums paid by the defendant for pendente lite child support
and the portion of carrying charges on the marital residence
that were attributable to child support, including the money
paid to satisfy two home equity loans, the plaintiff was not
due any additional money for child support (cf. Markowitz
v Markowitz, 146 A.D.3d 872, 874; Miller v
Miller, 25 A.D.3d 537, 538).
given the evidence at trial, the Supreme Court did not err in
declining to require the defendant to pay certain college
costs for the parties' son (see Domestic
Relations Law § 240[1-b][c]; cf. Silverstein v
Silverstein, 107 A.D.3d 779, 780).
Supreme Court did not improvidently exercise its discretion
in directing that the defendant pay only $20, 000 of the
plaintiff's counsel fees (see Domestic Relations
Law § 237[a]; Dochter v Dochter, 118 A.D.3d
665, 666). However, the court should have directed the
defendant to pay the plaintiff $25, 000 of the parties
pre-commencement credit card debt (see DiFiore v
DiFiore, 87 A.D.3d 971).
record supports the Supreme Court's determination that
the marital residence be sold and the proceeds of the sale be
divided equally. However, the court improvidently exercised
its discretion in directing that the defendant receive a
commission for acting as a receiver on the sale.
plaintiff's remaining contentions are without merit.
BALKIN, J.P., AUSTIN, LASALLE and BRATHWAITE ...