DIVORCE DETERMINING AMOUNT AND DURATION OF MAINTENANCE

Gorman v Gorman, 2018 NY Slip Op 07104, Decided on October 24, 2018, Appellate Division, Second Department:

"The parties were married on May 16, 1987. During the marriage, the defendant, after having worked as a legal secretary for a period of time, quit the workforce to become a homemaker and to care for the parties' two children, who now are in their mid-to-late twenties, while the plaintiff worked in various capacities connected with the United States military, including defense contracting work that took him overseas to Iraq.

This action for a divorce and ancillary relief was commenced on August 2, 2011, after the plaintiff vacated the marital residence. Thereafter, the defendant moved for and was awarded pendente lite maintenance and child support, and she has had exclusive occupancy of the marital residence during the pendency of this action. While the Supreme Court awarded the defendant unallocated temporary maintenance and child support in the sum of $6,300 per month in May 2013, the plaintiff unilaterally decided to pay the defendant, as of February 2014, the sum of only $2,500 per month. A nonjury trial was held on the ancillary economic issues attendant to the divorce. By judgment of divorce dated December 14, 2016, which incorporated by reference the court's decision after trial dated April 5, 2016, the court, inter alia, determined issues of maintenance, equitable distribution, pendente lite support arrears, and the defendant's application for attorney's fees. The defendant appeals and the plaintiff cross-appeals from stated portions of the judgment.

The defendant contends that her maintenance award of $4,500 per month for eight years, commencing January 1, 2012, is inadequate both in duration and amount, arguing, inter alia, that the Supreme Court improperly found, in setting the award, that she was capable of earning $26,000 per year and directed that maintenance shall terminate upon the plaintiff's remarriage. The plaintiff contends that the award is excessive, arguing, inter alia, that the court improperly imputed income to him.

"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" (Culen v Culen, 157 AD3d 926, 928; see Carroll v Carroll, 125 AD3d 710, 711). In cases, like this one, commenced prior to amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered include "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" (Gordon v Gordon, 113 AD3d 654, 655; see Domestic Relations Law former § 236[B][6][a]).

Here, considering the relevant factors, including the ages of the parties, the long duration of the marriage and the extended absence of the defendant from the workforce, the distribution of the marital assets, the parties' respective past and future earning capacities, and the availability of retirement funds and pensions, the Supreme Court providently exercised its discretion in awarding the defendant durational, as opposed to lifetime, maintenance (see Hartog v Hartog, 85 NY2d 36, 50-51; Levitt v Levitt, 97 AD3d 543, 544; Siskind v Siskind, 89 AD3d 832, 833; Litvak v Litvak, 63 AD3d 691, 691-692). However, rather than providing for a durational limitation of eight years and subjecting that award to termination upon the plaintiff's remarriage, under the circumstances of this case, the maintenance award should continue until the earliest of the defendant's remarriage, her attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party (see Repetti v Repetti, 147 AD3d 1094; Carroll v [*3]Carroll, 125 AD3d 710; Giokas v Giokas, 73 AD3d 688).

We disagree with the determination of the Supreme Court to impute to the plaintiff an annual income of $151,192. It is undisputed that from 2008 through late 2013, the plaintiff was employed overseas in Iraq and, as a result of such employment, received a significantly augmented salary, enhanced overtime, and no-cost room and board. In December 2013, the plaintiff returned to the United States, taking up residence in Ohio, where he resides with his fiancée. As of the time of trial, the plaintiff was employed by the Department of Defense as a quality assurance inspector at a salary of $81,079 per year. The plaintiff did not submit a current statement of net worth. He acknowledged that his earnings are deposited into a joint checking account with his fiancée and that all of his monthly expenses are shared with his fiancée. The plaintiff also acknowledged that he regularly gambles, to the point that he has received free hotel accommodations, airfare, vacations (including a cruise), and other free or discounted items because of his frequent gambling. In 2013, he reported gambling winnings of $11,250 on his tax return. He acknowledged winning $1,800 over two days of gambling in September 2014.

Taking into account the plaintiff's lack of candor in his testimony as to his finances, his history of gambling winnings and related benefits, and his failure to submit a current net worth statement and disclose his living expenses (which he shares with his fiancée), it is appropriate to impute to the plaintiff additional income above his basic governmental salary (see Fenech v Fenech, 141 AD3d 683, 685-686). However, we disagree with the Supreme Court's determination as to the amount of income to be imputed to the plaintiff. The full amount of the enhanced income attributable to the plaintiff's employment in Iraq should not be imputed to him given that the plaintiff has returned from Iraq and no longer receives such heightened compensation. It would be unreasonable to expect that the plaintiff would remain in Iraq indefinitely. Under the circumstances presented, we find it appropriate to impute to the plaintiff an annual income of $100,000, which attributes to the plaintiff enhanced income from his gambling activities and reflects an adjustment for the savings that the plaintiff should obtain from sharing living expenses with his fiancée.

While we agree with the defendant that the Supreme Court should not have imputed income to her based on statistical information from the New York State Department of Labor that was not admitted in evidence at trial (see McAuliffe v McAuliffe, 70 AD3d 1129, 1132-1133), there was evidence, nonetheless, that the defendant had earned $15 per hour as a legal secretary during the early part of the marriage. Even though she has been out of the work force for an extended period of time and does not have a college degree, she is in good health and has a sufficient employment history to warrant the conclusion that she is capable of earning at least the sum of $26,000 annually, which is the amount of income imputed to her by the court.

Taking into account the parties' respective imputed incomes and all the factors to be considered in awarding maintenance, we determine that the amount of maintenance payable by the plaintiff to the defendant to be $2,750 per month, which sum shall be neither tax deductible by the plaintiff nor taxable to the defendant."