- May 4, 2017
Anthony A. Capetola, Williston Park, NY (Robert P. Johnson of
counsel), for appellant.
Office of David P. Fallon, PLLC, Sayville, NY, for respondent
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, ROBERT J. MILLER,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court,
Suffolk County (Carol MacKenzie, J.), entered August 29,
2014. The judgment, insofar as appealed from, awarded the
defendant maintenance in the amount of $2, 500 per month
until she reaches the age of 66, made an equitable
distribution of the parties' marital assets, and awarded
the defendant counsel fees in the sum of only $5, 000.
that the appeal from so much of the judgment as awarded the
defendant counsel fees in the sum of $5, 000 is dismissed,
without costs or disbursements; and it is further, ORDERED
that the judgment is affirmed insofar as reviewed, without
costs or disbursements.
plaintiff and the defendant were married in 1975. The
plaintiff is an electrical contractor and the owner of
Brinkmann Electric Corporation (hereinafter Brinkmann
Electric), a company that he purchased from his father during
the marriage. The defendant worked as bookkeeper for
Brinkmann Electric throughout the duration of the
parties' marriage. In August 2011, the plaintiff
commenced this action for a divorce and ancillary relief. In
December 2012, the parties entered into a stipulation
resolving issues relating to the equitable distribution of
certain marital property. Pursuant to the stipulation, the
defendant agreed to relinquish any interest that she may have
in Brinkmann Electric in exchange for sole ownership of a
corporate entity that the parties formed during the marriage
which owns a parcel of commercial real estate in West
Babylon. The action proceeded to a trial in March 2014. By
judgment entered August 29, 2014, the Supreme Court, among
other things, directed that the parties equally divide their
remaining marital property, directed that the plaintiff pay
maintenance to the defendant in the monthly sum of $2, 500
until she reaches 66 years of age, and awarded the defendant
counsel fees in the sum of $5, 000.
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" (Repetti v
Repetti, 147 A.D.3d 1094, 1096 [internal quotation marks
omitted]; see Kaprov v Stalinsky, 145 A.D.3d 869,
873-874; Diwan v Diwan, 135 A.D.3d 807, 809).
"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, quoting Kret v Kret, 222 A.D.2d
412, 412). Here, the Supreme Court considered these relevant
factors and providently exercised its discretion in awarding
maintenance to the defendant in the amount of $2, 500 per
month until she reaches the age of 66 (see Sansone v
Sansone, 144 A.D.3d 885, 887; Maddaloni v
Maddaloni, 142 A.D.3d 646, 654). We find no reason to
disturb the court's credibility determinations regarding
the defendant's ability to work and the plaintiffs
finances, which determinations are entitled to deference on
appeal (see Massirman v Massirman, 78 A.D.3d 1021,
equitable distribution of marital assets must be based on the
circumstances of the particular case and the consideration of
a number of statutory factors (see Domestic Relations Law
§ 236[B][d]; Holterman v Holterman, 3 N.Y.3d
1, 7). "Those factors include: the income and property
of each party at the time of marriage and at the time of
commencement of the divorce action; the duration of the
marriage; the age and health of the parties; the loss of
inheritance and pension rights; any award of maintenance; any
equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of marital property by
the party not having title; and any other factor which the
court shall expressly find to be just and proper"
(Taylor v Taylor, 140 A.D.3d 944, 945-946;
see Domestic Relations Law § 236[B][d];
Halley-Boyce v Boyce, 108 A.D.3d 503, 504). "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 [internal
quotation marks omitted]; see Saleh v Saleh, 40
A.D.3d 617, 617-618). Here, considering the foregoing
factors, the Supreme Court providently exercised its
discretion in distributing equally between the parties those
marital assets not provided for in the stipulation
(see Grasso v Grasso, 47 A.D.3d 762, 764).
Moreover, in making this distribution, the court did not err
in granting the plaintiff a credit for one-half of the
payments that he made towards the mortgage on the marital
residence following the commencement of the action.
"'[G]enerally, it is the responsibility of both
parties to maintain the marital residence . . . during the
pendency of a matrimonial action'" (Hymowitz v
Hymowitz, 119 A.D.3d 736, 741, quoting Judge v
Judge, 48 A.D.3d 424, 425-426). Here, the defendant
voluntarily moved out of the marital residence in 2010, and
the plaintiff had been solely responsible for the mortgage
payments on the residence since that time (see Judge v
Judge, 48 A.D.3d at 425-426; see also Hymowitz v
Hymowitz, 119 A.D.3d at 741-742).
appeal from so much of the judgment as awarded the defendant
counsel fees in the sum of $5, 000 must be dismissed.
"It is the obligation of the appellant to assemble a
proper record on appeal" (Sawin v Sawin, 128
A.D.3d 663, 668; see Istomin v Istomin, 130 A.D.3d
575, 576; Wen Zong Yu v Hua Fan, 65 A.D.3d 1335).
Here, the defendant failed to include any of the papers
submitted to the Supreme Court in connection with her
application for counsel fees in the record on appeal. Since
the record is inadequate for this Court to review the issues
raised by the defendant as to this award, we dismiss the
appeal from this portion of the judgment (see Bousson v
Bousson, 136 A.D.3d 954; Sawin v Sawin, 128
A.D.3d at 668).
defendant's remaining contentions are without merit.
RIVERA, J.P., SGROI, MILLER and BRATHWAITE ...