BARNARD v. BARNARD (2026)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Dutchess County (Lisa Rubenstein, Ct. Atty. Ref.), dated December 4, 2024.  The judgment of divorce, upon a decision of the same court dated December 12, 2023, made after a nonjury trial, inter alia, (1) failed to equitably distribute the funds in the plaintiff's checking and savings accounts, (2) awarded the plaintiff retroactive child support in the amount of $99,683.88, without crediting the defendant for certain mortgage payments, (3) awarded the plaintiff maintenance in the sum of $2,890.35 per month for a period of one year, and (4) directed the defendant to pay $18,000 in counsel fees.

ORDERED that the judgment of divorce is modified, on the law and the facts, (1) by adding thereto a provision awarding the defendant a 50% share of the plaintiff's savings and checking accounts identified in her statement of net worth dated August 21, 2020, as of the date of the commencement of the action, and (2) by deleting the provision thereof awarding the plaintiff retroactive child support in the amount of $99,683.88;  as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Dutchess County, for further proceedings, including recalculation of the amount of retroactive child support, in accordance herewith and for the entry of an appropriate amended judgment of divorce thereafter.

The parties were married in 2017 and have two children together.  In July 2020, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce.  Thereafter, the parties stipulated to a ground for divorce, and the complaint was amended to seek a judgment of divorce on that ground.  Following a nonjury trial on the issues of maintenance, child support, and equitable distribution, the Supreme Court, upon a decision dated December 12, 2023, entered a judgment of divorce dated December 4, 2024.  The judgment of divorce, among other things, (1) awarded the plaintiff maintenance in the sum of $2,890.35 per month for a period of one year, (2) awarded the plaintiff retroactive child support in the amount of $99,683.88, without crediting the defendant for certain mortgage payments and other expenses allegedly paid by the defendant, (3) failed to equitably distribute the funds in the plaintiff's checking and savings accounts, and (4) directed the defendant to pay $18,000 in counsel fees.  The defendant appeals.

“The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting” (Torkin v. Susac, 236 A.D.3d 1082, 1085, 230 N.Y.S.3d 647 (2025) [internal quotation marks omitted];  see Mahoney v. Mahoney, 197 A.D.3d 638, 639, 152 N.Y.S.3d 727 (2021)).  “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 unique facts” (Torkin v. Susac, 236 A.D.3d at 1085, 230 N.Y.S.3d 647 [internal quotation marks omitted];  see Novick v. Novick, 214 A.D.3d 995, 997, 185 N.Y.S.3d 793 (2023)).  Here, considering the relevant factors, including, inter alia, the age of the parties, their present and future earning capacities, and that the plaintiff delayed her employment to care for the parties' young children, the Supreme Court's award of maintenance was a provident exercise of discretion (see Domestic Relations Law § 236[B][6][e][1];  Torkin v. Susac, 236 A.D.3d at 1085, 230 N.Y.S.3d 647;  Novick v. Novick, 214 A.D.3d at 997, 185 N.Y.S.3d 793).

A party's child support obligation commences, and is retroactive to, the date the application was made, which in this case was the date that the action was commenced (see Domestic Relations Law § 236[B][7][a];  Ford v. Ford, 200 A.D.3d 854, 855, 161 N.Y.S.3d 103 (2021);  DiLascio v. DiLascio, 170 A.D.3d 804, 808, 95 N.Y.S.3d 588 (2019)).  In calculating the child support award, the court should take “into account any amount of temporary child support which has been paid” (Domestic Relations Law § 236[B][7][a] ).  As such, generally a parent should be credited for, among other things, payments made towards the carrying charges on the marital home (see Ford v. Ford, 200 A.D.3d at 856, 161 N.Y.S.3d 103;  DiLascio v. DiLascio, 170 A.D.3d at 808, 95 N.Y.S.3d 588).  Here, contrary to the defendant's contention, he failed to substantiate his claim that he contributed approximately $1,500 per month to the plaintiff during the pendency of the action.  However, the Supreme Court determined that he had paid the mortgage on the marital home until January 2021, but the court did not determine the amount of those payments that should be credited against the award of retroactive child support (see Yunis v. Yunis, 94 N.Y.2d 787, 788–789, 699 N.Y.S.2d 702, 721 N.E.2d 952 (1999)) or award the defendant any such credit.  We therefore remit the matter to the Supreme Court, Dutchess County, to determine the amount of credit the defendant should receive against the award of retroactive child support for those mortgage payments (see Ford v. Ford, 200 A.D.3d at 856–857, 161 N.Y.S.3d 103;  DiLascio v. DiLascio, 170 A.D.3d at 808, 95 N.Y.S.3d 588).

“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” (Novick v. Novick, 214 A.D.3d at 999, 185 N.Y.S.3d 793 [internal quotation marks omitted];  see Torkin v. Susac, 236 A.D.3d at 1086, 230 N.Y.S.3d 647).  Here, the Supreme Court equitably distributed the defendant's bank accounts as of the date of the commencement of the action but failed to equitably distribute the plaintiff's savings and checking accounts, which were identified in her statement of net worth dated August 21, 2020.  As the plaintiff failed to establish that these funds constituted separate property, the court should have awarded the defendant his proportionate share of those accounts (see Domestic Relations Law § 236[B][5][b], [c];  Novick v. Novick, 214 A.D.3d at 999, 185 N.Y.S.3d 793).

“An award of counsel fees is a matter within the sound discretion of the trial court, taking into consideration the equities and circumstances of the particular case, including the parties' respective financial conditions and the relative merit of their positions” (Habib v. Habib, 227 A.D.3d 874, 877, 212 N.Y.S.3d 140 (2024);  see Domestic Relations Law § 237[a];  Rothman v. Rothman, 243 A.D.3d 939, 942, 247 N.Y.S.3d 397 (2025)).  Here, considering the equities and the circumstances of the case, including the parties' respective financial conditions, the Supreme Court providently exercised its discretion in awarding the plaintiff counsel fees in the sum of $18,000.

The defendant's remaining contentions are without merit.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.