ANSOUR v. ANSOUR (2009)

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered February 28, 2008, to the extent appealed from as limited by the briefs, awarding defendant maintenance of $6,000 per month until the month she receives her first deferred-income payment due in 2010 as part of equitable distribution, ordering plaintiff to pay $6,343.75 per month in basic child support, to be recalculated in 2008 to include maintenance payments defendant has received, and ordering plaintiff to pay $80,000 to defendant's counsel and $15,000 to defendant's expert accountant, unanimously affirmed, with costs.

 Income was imputed to defendant from her interest in a limited partnership, which she reports on her federal income tax return as tax-exempt.   This was appropriate in light of the court's finding that defendant was not forthcoming about this interest (cf. Brenner v. Brenner, 52 A.D.3d 322, 860 N.Y.S.2d 58 [2008] ).

 The child support award was properly based on the children's actual needs and the amount required for a lifestyle appropriate for them (see Matter of Vladlena B. v. Mathias G., 52 A.D.3d 431, 861 N.Y.S.2d 331 [2008] ).   As to the court's direction that child support be recalculated in 2008 to include defendant's income from maintenance, such maintenance payments received and reported on a party's most recently filed income tax return should be included as income for purposes of calculating child support (Domestic Relations Law § 240[1-b][b][5][i];  Matter of Krukenkamp v. Krukenkamp, 54 A.D.3d 345, 862 N.Y.S.2d 571 [2008];  Matter of Diamond v. Diamond, 254 A.D.2d 288, 289, 678 N.Y.S.2d 127 [1998] ).   Of course, upon expiration of the maintenance payments in 2010, defendant may seek to modify the child support award accordingly.

 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 own unique facts (Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 [2004] ).   Here, including pendente lite maintenance, defendant was awarded seven years of maintenance, which is equivalent to the length of the marriage.   In addition, as the trial court noted in considering all the relevant factors, the marital lifestyle was not lavish, defendant received over $2 million in equitable distribution, she was not forthcoming about her separate property, she was only 44 years old, and she held two masters degrees that would allow her to become gainfully employed in the near future.   Moreover, the court crafted the maintenance award to terminate when the children became 12 years old and defendant would begin receiving deferred income from the equitable distribution settlement.   Defendant's comparison of this case to those in which lifetime maintenance was awarded is without merit, since those cases involved marriages of long duration (see Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 [1976], cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 [1976];  Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 339 N.E.2d 143 [1975] ), where the recipient spouse had little or no career experience (Phillips v. Phillips, 182 A.D.2d 746, 747, 582 N.Y.S.2d 743 [1992];  Reingold v. Reingold, 143 A.D.2d 126, 531 N.Y.S.2d 585 [1988] ), or where the recipient spouse's age and medical condition were factors (Loeb v. Loeb, 186 A.D.2d 174, 587 N.Y.S.2d 738 [1992] ).

 In light of the considerable distributive award and defendant's conduct unnecessarily protracting and complicating this action, the trial court providently exercised its discretion in awarding defendant only a portion of her counsel and expert fees (see Azizo v. Azizo, 51 A.D.3d 438, 859 N.Y.S.2d 113 [2008];  Kumar v. Dudani, 281 A.D.2d 178, 721 N.Y.S.2d 629 [2001], lv. denied 97 N.Y.2d 603, 735 N.Y.S.2d 492, 760 N.E.2d 1288 [2001] ).