Maniatis & Dimopoulos, P.C., Tuckahoe, NY (Constantine G.
Dimopoulos and Gus Dimopoulos of counsel), for appellant.
Pappalardo & Carbonari, White Plains, NY (Olivia T.
Marotta and John A. Pappalardo of counsel), for respondent.
C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from stated portions of a judgment of
divorce of the Supreme Court, Westchester County (Linda
Christopher, J.), dated January 14, 2015. The judgment,
insofar as appealed from, upon a decision of that court dated
November 7, 2014, made after a nonjury trial, inter alia,
awarded the plaintiff maintenance, failed to direct the sale
of the marital residence, and equitably distributed the
parties' marital property.
that the judgment of divorce is affirmed insofar as appealed
from, with costs.
parties were married on May 6, 1990, and are the parents of
two emancipated children. During the marriage, the plaintiff
was the primary caregiver for the children and a homemaker.
The defendant owned a restaurant in Manhattan. In 2012, after
22 years of marriage, the plaintiff commenced this action for
a divorce and ancillary relief. A nonjury trial was held on
the issues of equitable distribution of the marital property
and maintenance. The Supreme Court issued a decision after
trial, and subsequently a judgment, inter alia, awarding the
plaintiff the marital residence, with a credit to the
defendant in the amount of $315, 000, and maintenance in the
amount of $5, 000 per month from December 1, 2014, until
November 1, 2017, then $4, 000 per month until November 1,
2020, and then $3, 000 per month until October 31, 2023. The
plaintiff was also awarded the total sum of $514, 564,
representing her equitable share of numerous real estate
investment properties located in New Jersey, including the
sum of $83, 500, representing one-half of the value of funds
the defendant had withdrawn from an account in his name with
Eurobank. The defendant appeals, as limited by his notice of
appeal, from stated portions of the judgment of divorce.
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" (Repetti v
Repetti, 147 A.D.3d 1094, 1096 [internal quotation marks
omitted]; see Kaprov v Stalinsky, 145 A.D.3d 869,
874). "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). "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 [internal
quotation marks omitted]). Considering the relevant factors,
in this case, the amount and duration of the maintenance
award was a provident exercise of discretion (see Ralis v
Ralis, 146 A.D.3d 831, 833; Bogenschultz v
Green, 144 A.D.3d 958, 959; Maddaloni v
Maddaloni, 142 A.D.3d 646, 654; Perdios v
Perdios, 135 A.D.3d 840, 842).
addition, under the circumstances, the Supreme Court did not
improvidently exercise its discretion in declining to order
the sale of the marital residence, particularly since the
defendant received a credit representing his share of the
equity in the residence (see Taverna v Taverna, 56
A.D.3d 461, 462-463; Puglisi v Puglisi, 16 A.D.3d
477, 477; Jarrell v Jarrell, 276 A.D.2d 353, 354;
Ierardi v Ierardi, 151 A.D.2d 548, 548-549).
the Supreme Court providently exercised its discretion in
awarding the plaintiff the sum of $83, 500, representing
one-half of the value of the funds the defendant had
withdrawn from the Eurobank account, on the ground that the
defendant failed to present sufficient evidence that the
source of those funds was his separate property (see
Hymowitz v Hymowitz, 119 A.D.3d 736, 739-740; Spera
v Spera, 71 A.D.3d 661, 664; D'Angelo v
D'Angelo, 14 A.D.3d 476, 477). Moreover, the
defendant failed to establish that he was entitled to a
separate property credit in the amount of $110, 000 for the
appreciation in value of a property located on Third Street
in Jersey City, New Jersey, as of the date of the marriage
(see Iacono v Iacono, 145 A.D.3d 972, 973; Renck
v Renck, 131 A.D.3d 1146, 1149).
to the defendant's contention, the Supreme Court did not
err in declining to consider his potential tax liabilities
resulting from a future sale of property located on 17th
Avenue in Patterson, New Jersey. There was no evidence of an
impending sale of that property, and it would be inequitable
to saddle the plaintiff with any capital gains tax liability
that the defendant might incur upon a sale of the property at
some point in the future (see Cavaluzzo v Cavaluzzo,
121 A.D.3d 538, 539). Moreover, where, as here, a party fails
to offer any competent evidence concerning tax liabilities,
the court is not required to consider the tax consequences of
its award (see Peritore v Peritore, 66 A.D.3d 750,
753; Taverna v Taverna, 56 A.D.3d at 462; Chase
v Chase, 208 A.D.2d 883, 884-885).
defendant contends that the Supreme Court improvidently
exercised its discretion in awarding the plaintiff a property
located in Long Beach, New Jersey, one-half of the cash
surrender value of a Prudential Life Insurance policy, and
the sum of $17, 500, representing one-half of the marital
funds used to renovate his separate properties in Greece. As
the plaintiff correctly argues, these contentions are not
properly before this Court, as they are beyond the scope of
his limited notice of appeal (see White v Farrell,
20 N.Y.3d 487, 493 n 1; O'Brien v ...