LUONGO v. LUONGO (2008)

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Orange County (Owen, J.), dated July 26, 2006, which, after a nonjury trial, inter alia, (1) awarded the plaintiff a divorce on the ground of cruel and inhuman treatment, (2) awarded the plaintiff child support in the sum of $1,057.15 per month, (3) awarded the plaintiff a share of his pension and variable supplement fund benefits, and (4) awarded the plaintiff an attorney's fee in the sum of $6,000.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The determination of what constitutes cruel and inhuman treatment during a marriage is dependent on the circumstances of the case, and the trial court's determination of this issue will not lightly be overturned on appeal (see Bluth v. Bluth, 45 A.D.3d 796, 846 N.Y.S.2d 334;  Curatola v. Curatola, 43 A.D.3d 974, 842 N.Y.S.2d 520;  Levy v. Levy, 289 A.D.2d 379, 734 N.Y.S.2d 247;  French v. French, 262 A.D.2d 280, 691 N.Y.S.2d 121).  Here, the plaintiff satisfied her burden of demonstrating that the defendant engaged in conduct, including two physical assaults, which was harmful to her physical and mental well-being and made it unsafe or improper for her to cohabit with him (see Domestic Relations Law § 170[1];  Bluth v. Bluth, 45 A.D.3d 796, 846 N.Y.S.2d 334;  Acito v. Acito, 21 A.D.3d 1044, 801 N.Y.S.2d 156;  Reed v. Reed, 13 A.D.3d 602, 786 N.Y.S.2d 358).  The defendant's denial that he engaged in such conduct presented a credibility question which the court was entitled to resolve against him (see Fuegel v. Fuegel, 271 A.D.2d 404, 705 N.Y.S.2d 400;  French v. French, 262 A.D.2d 280, 691 N.Y.S.2d 121).  Accordingly, the court properly awarded the plaintiff a divorce on the ground of cruel and inhuman treatment.

 Furthermore, the court properly calculated the defendant's monthly child support obligation without crediting him for Social Security benefits which the children receive due to his disability.  “[A]lthough a dependent child's Social Security benefits are derived from the disabled parent's past employment, they are designed to supplement existing resources and are not intended to displace the obligation of the parent to support his or her children” (Matter of Graby v. Graby, 87 N.Y.2d 605, 611, 641 N.Y.S.2d 577, 664 N.E.2d 488;  see Matter of Weymouth v. Mullin, 42 A.D.3d 681, 839 N.Y.S.2d 600;  Matter of Wrighton v. Wrighton, 23 A.D.3d 669, 805 N.Y.S.2d 101;  Matter of Pinto v. Putnam County Support Collection Unit, 295 A.D.2d 350, 743 N.Y.S.2d 521).

 The court did not err in directing distribution of the defendant's pension and variable supplement fund benefits in accordance with the equitable distribution formula set forth in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15.  Pensions represent a form of deferred compensation paid after retirement in lieu of greater compensation during the period of employment (see Olivo v. Olivo, 82 N.Y.2d 202, 207, 604 N.Y.S.2d 23, 624 N.E.2d 151;  Majauskas v. Majauskas, 61 N.Y.2d at 491–492, 474 N.Y.S.2d 699, 463 N.E.2d 15), and the nonemployee spouse is entitled to share in the pension of the employee spouse as well as supplements to existing pension benefits, such as variable supplement fund benefits (see DeLuca v. DeLuca, 97 N.Y.2d 139, 145, 736 N.Y.S.2d 651, 762 N.E.2d 337;  Olivo v. Olivo, 82 N.Y.2d at 209–210, 604 N.Y.S.2d 23, 624 N.E.2d 151;  Pagliaro v. Pagliaro, 31 A.D.3d 728, 821 N.Y.S.2d 602).

 The award of counsel fees in a matrimonial action is a matter within the discretion of the trial court (see DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  Sevdinoglou v. Sevdinoglou, 40 A.D.3d 959, 836 N.Y.S.2d 680).  In light of the defendant's greater financial resources, the court providently exercised its discretion in awarding the plaintiff an attorney's fee in the sum of $6,000 (see Sevdinoglou v. Sevdinoglou, 40 A.D.3d 959, 836 N.Y.S.2d 680;  Levy v. Levy, 4 A.D.3d 398, 771 N.Y.S.2d 386;  Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.