Under appropriate circumstances, post-divorce spousal support may last much longer than the marriage itself. So held the Appellate Division, Second Department, in its September 2019 decision in Murphy v. Murphy.
The parties were married in 2004. They had no children together. Prior to the marriage, the wife was diagnosed with multiple sclerosis.
In 2013, after 8½ years of marriage, the wife commenced this action for a divorce. After three years, the parties were able to enter a stipulation resolving the issue of equitable distribution. The issue of maintenance was tried before Supreme Court, Suffolk County Justice Carol MacKenzie. At the time of trial, the wife was 42 years old and the husband 47.
The critical issue presented was whether the wife was capable of working, and if so, in what capacity, as a result of the symptoms that she alleged she experienced due to multiple sclerosis. Justice MacKenzie concluded that the wife was incapable of maintaining employment. The wife was awarded maintenance of $10,760 per month terminating 25 years after trial when the wife turned 67 years old.
The husband appealed. The Second Department agreed with the result, noting (in this pre-guidelines case) that among the factors affecting the amount and duration of maintenance included the standard of living of the parties during the marriage, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, and the ability of the party seeking maintenance to become self-supporting.
The appellate court agreed that in light of the husband’s (unspecified) income, the parties’ standard of living during the marriage, and the wife’s inability to maintain employment due to the symptoms of her disease, monthly maintenance in the sum of $10,760 was appropriate. The termination at age 67 was also upheld (the Second Department did modify the judgment to direct that maintenance terminate earlier if either party died or the wife remarried).
The evidence at trial demonstrated that the wife was diagnosed with multiple sclerosis (a chronic and incurable autoimmune disease), as well as another autoimmune disorder, Hassimoto’s thyroiditis. The wife’s evidence included her testimony and medical records, and other letters and memoranda from her treating physician. That evidence demonstrated that the wife experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work.
The appellate court noted that Justice MacKenzie had the opportunity to view the demeanor of the witnesses at the trial and was in the best position to gauge their credibility. Those credibility determinations, including its rejection, as incredible, of the opinion of the husband’s expert witness that the wife was capable of working full time in a sedentary job, were entitled to great deference on appeal. Although the wife worked during the marriage in a limited capacity as a yoga instructor up to two hours per week until approximately 2014, the wife also testified that she while she could still practice yoga and did so, she could no longer instruct. The fact that the wife wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result.
Moreover, the Second Department held that Justice MacKenzie did not err in admitting into evidence all of the records that the wife’s treating physician produced pursuant to a subpoena served on him by the husband’s attorney in accordance with a stipulation executed by the parties.
Thomas K. Campagna and Nicholas E. Arazoza, of Campagna Johnson, P.C., in Hauppauge, represented the wife. Joshua Forman and Alexis Wolf, of Chemtob Moss & Forman, LLP (now Chemtob Moss Forman & Beyda, LLP), of Manhattan, represented the husband.