Published on:

Brinkman v Brinkman

NY Slip Op 05702

July 19, 2017

Decision

The defendant appeals a judgment from Suffolk County Supreme Court. The original judgment provided the defendant maintenance of $2,500 per month until she reaches 66 years of age. The marital assets were equitably distributed and the defendant receive counsel fees of $5,000.

Ordered: The appeal awarding the defendant counsel fees of $5,000 is dismissed. The judgment is affirmed.

The couple was married in 1975. The plaintiff was the owner of Brinkman Electrical Corporation, which he purchased from his father during their marriage. The defendant worked as the company book keeper. In 2011, the plaintiff commenced the divorce. In 2012, the parties entered a stipulation resolving equitable distribution issues. The defendant agreed to relinquish any interest she had in the company in exchange for sole ownership of an entity that owns real estate in West Babylon. A judgment was entered on 8/14. The court directed the parties to divide their remaining property and ordered the defendant to pay $2,500 per month until the defendant reaches the age of 66 yrs., and to pay attorney’s fees of $5,000.

The matter of spousal maintenance is the sole discretion of the court and is decided on a case by case basis (Repetti v Repetti 147 AD3d 1094; Diwan v Diwan 135 AD3d 807; Kapro v Stalensky 145 AD3d 869. The issues looked at in determining maintenance include the income of the parties, their standard of living, duration of the marriage, and the health of the parties, and the party’s present and future earning capacity (Horn v Horn 145 AD3d 666; Krett v Krett 222 AD2d 412).

The court here exercised its discretion wisely ordering the amount of $2,500 be paid until the defendant was 66 years of age. There appears to be no reason to disturb the court’s decision (Massirman v Massirman 78 AD 1021).

Equitable distribution is based on the particulars of each case (Holterman v Holterman 3 NY3d 1, 7; Domestic Relations Law 236 [b][5][d]. Factors that the court will consider are the length of the marriage, the loss of pension rights, the income and property of each party, any contributions made for the acquisition of marital property, or any other factor that the court deems proper (Domestic Relations Law 236 [b][5], Taylor v Taylor 140 AD3d 944, Halley-Boyce v Boyce 108 AD3d 503). The court has broad discretion in equitably distributing the property unless it can be proven that the court made an unjust decision, it shouldn’t be disturbed (Saleh v Saleh 40 AD3d 617; Aloi v Simoni 82 AD3d 683). Here the court wisely exercised their discretion (Grasso v Grasso 47 AD3d 762). The court didn’t err in giving the plaintiff credit for ½ the payments made toward the mortgage during the divorce action (Judge v Judge 48 AD3d 424; Hymowitz v Hymowitz 119 AD3d 736). The defendant moved out of the residence in 2010, and the plaintiff has been making payments since.

The appeal for the $5,000 attorney’s fees is dismissed. The appellant has the obligation of securing a proper record of appeal (Sawin v Sawin 128 AD3d 663; Wen Zong Yu v Hua Fun 65 AD3d 1335). The defendant failed to include any papers for her application of attorney’s fees.

In New York, the term alimony is used interchangeably with the words “support” or “maintenance.” In most states, “no fault” doesn’t have an effect on maintenance. So, issues such as abuse or infidelity are irrelevant in terms of maintenance being awarded.

There aren’t guidelines to follow when calculating maintenance. Because of this, it is a hotly contested issue in court.

Generally, spousal maintenance is awarded when:

The spouse lacks sufficient property to provide for their needs;

They cannot provide adequate support for themselves;

They are the custodian of a child and unable to work.

Going through a divorce is a stressful experience. It is important to not try and handle your divorce by yourself, as they can become quite complex legally. Speak to Stephen Bilkis and Associates for guidance and a free consultation. They have offices in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today to schedule your free consultation at 1-800-NYNYLAW.

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