Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).

Continue Reading Making It Tougher To Deviate From Presumptive Formulas on Temporary Support Awards

Alimony handedIn its June 4, 2015 decision in Orioli v. Orioli, the Appellate Division, Third Department, affirmed an award of lifetime maintenance (alimony).

The parties were married in 1989 and had two children. In 2009, the wife commenced this action for divorce. Chenango County Supreme Court Justice Kevin M. Dowd awarded the wife nondurational maintenance of $78,000 per year, to be decreased to $50,000 per year once she reached the age of 62. Maintenance would only terminate upon either party’s death or the wife’s remarriage.

The Third Department affirmed, holding that Justice Dowd did not abuse his discretion in his award of maintenance to the wife.

The amount and duration of a maintenance award is left to the sound discretion of a trial court that has considered the statutory factors and the parties’ predivorce standard of living.

A spouse’s ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance.

Indeed, Justice Dowd had addressed the numerous statutory factors and the predivorce standard of living when making the permanent award.

Among other things, he considered the evidence that the marriage was of a long duration (20 years). Justice Dowd further considered that one of the parties’ children resided with the wife, that maintenance would be taxable for the wife and tax deductible for the husband.

It was also noted that the wife had wastefully dissipated $120,000 of marital assets, and lacked candor in her statement of net worth.

Justice Dowd also considered that as of 2009, the husband had reported income of approximately $425,000, while the wife had no income that year. On the other hand, the wife was now capable of working and earning at least $32,000 a year. She did not require additional time or training to gain such employment. Her earning capacity was not affected by her choice not to work during portions of the marriage.

Finally, Justice Dowd recognized that the wife had enjoyed a comfortable standard of living that was commensurate with the husband’s income.

Given the totality of the evidence, we agree that it is unlikely that the wife will become self-supporting so as to attain the lifestyle to which she had been accustomed to during the course of the approximately two-decade marriage.

Accordingly, the appellate court concluded that nondurational maintenance in the amount awarded, which included a reduction in that award at a set future date, was not an abuse of discretion.

William H. Getman, of Woodman & Getman, of Waterville, represented the wife. Michael S. Sinicki, of Hinman, Howard & Kattell, LLP, of Binghamton, represented the husband.

Requiring the wife to pay the carrying charges of the marital residence pendente lite was proper in light of the awards to the wife of temporary maintenance and child support. So held the the Appellate Division, Second Department, in its June 12, 2013 decision in Fini v. Fini, affirming the order of Orange County Supreme Court Justice Lawrence Ecker.

Moreover, Justice Ecker properly based his $7,500 per month temporary maintenance award upon the wife’s needs and the standard of living of the parties prior to commencement of the divorce action as the husband’s “evidence of his gross income was insufficient, and was not reconcilable with his prior spending habits or the parties’ standard of living.”

On appeal, the husband failed to demonstrate that the pendente lite award left him unable to meet his financial obligations. There was no basis in the record to disturb the award of temporary maintenance. Any perceived inequities would best be remedied by a speedy trial.

The husband was represented by William J. Larkin III of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh. The wife was represented by Adam W. Schneid of Most & Schneid, P.C., of White Plains.