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#116 Third Department Caselaw Round-Up for December 22, 2011, Part 3 of 3

87 Post 12-22-11, Part 3 Third Department December.pngOne more week of cases and we are done with both December and 2011. Just a few more to go. From there, we will move quickly into the many new cases decided in 2012.

The last case for this week examines equitable distribution and spousal support – especially when wasteful dissipation of marital assets has occurred.

There are forty-one (41) decisions for this week with only five (5) of those decisions concerning family law (or related) cases.

29-9 Post Ulster County.pngCase #84 #512296
Roberto v. Roberto, ___ A.D.3d ___, ___ N.Y.S.2d ___ Ulster Supreme – Work Issues: Credibility; Divorce; Equitable Distribution; Spousal Support; Wasteful Dissipation Cited statutes: DRL §236 Affirmed

The husband left the marital residence and the wife thereafter brought an action for divorce, seeking equitable distribution of the marital property, spousal support, and counsel fees. After a bench trial, the Supreme Court “granted the wife a divorce and directed, among other things, that the parties equally divide their real property, that the husband pay maintenance [spousal support] to the wife for a total of six years and that the husband pay counsel fees on behalf of the wife in the amount of $10,000.”

Both parties appeal.

The parties were married for 28 years and had a marital residence in Ulster County valued at $650,000 and a condominium in Miami, Florida valued at $355,000. The court takes care to note that the parties “drive expensive luxury cars and vacation extensively”. Yeah, we get it: these people are rich.

The key aspect to this case was that the husband effectively walked out on the marriage and then, several months later, walked out on the business that he and his wife had successfully built over the years. Though the husband later returned to the business, and ousted his wife from the business after his return, the business thereafter fell apart.

When a court attempts to engage in the equitable distribution of marital property, “the court must consider a variety of factors including, among others, the income and property of each party at the time of marriage, and at the time of the commencement of the action, the loss of health insurance benefits upon dissolution of the marriage, any award of maintenance, the probable future financial circumstances of each party, and the wasteful dissipation of assets by either spouse.”

In this case, both parties contested the trial court’s determination that the two residences should be liquidated with the proceeds of the respective sales divided equally. The husband claimed that he deserved a larger piece of the pie insofar as he claimed that “he was primarily responsible for the construction of the marital residence and performed the majority of the work for” their business. He further claimed that he did not waste any marital assets and that he should not have to pay his wife any spousal support. The wife claimed that because of the husband’s wasteful dissipation of assets, “the marital residence should have been awarded to her in its entirety, with the remainder of the parties’ assets being divided equally”, and that she should have been awarded permanent spousal support.

The Third Department found that the trial judge acted rationally and refused to disturb the trial court’s findings.

With regard to the spousal support, the court noted that “it is well settled that the purpose of maintenance is to provide financial support for the recipient spouse while he or she gains the skills and employment necessary to become self-sufficient.” Furthermore, “the amount and duration of a spousal maintenance award is within the sound discretion of Supreme Court, after consideration of the enumerated statutory factors, as well as the marital standard of living” (see Domestic Relations Law §236(B)(6)(a)).

In this particular case, the court considered “the duration of the marriage, the parties’ ages, their pre-divorce standard of living, the disparity between their respective earning capacities, the wife’s ability to become self-sufficient, … her experience in the … business, the husband’s wasteful dissipation of marital assets, and the parties’ income and property, including the award of equitable distribution.”

Caselaw Round-Up Score Card:

Affirmed: 55 (65.48%)
Decision Withheld: 2 (2.38%)
Dismissed: 7 (8.33%)
Modified: 8 (9.52%)
Reversed: 12 (14.29%)

Total: 84