CULLINAN v. CULLINAN (2026)

MEMORANDUM AND ORDER

Cross-appeals from a judgment of the Supreme Court (Margaret Tabak, Referee), entered March 13, 2025 in Saratoga County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 2007 and together share three children (born in 2008, 2010 and 2014).  In 2022, the wife filed for divorce and sought, among other things, child support and spousal maintenance.  The husband answered and asserted a counterclaim, seeking to enforce the parties' prenuptial agreement and the division of the parties' assets in accordance with its terms.  In the meantime, an order of custody was issued in November 2023, which incorporated by reference a written agreement entered into by the parties, granting them joint legal custody and shared equal residential custody of the children.

As is relevant here, the parties' prenuptial agreement includes several provisions concerning the distribution of property owned at the time of the marriage and subsequently acquired property, as well as any increase in value, specifically noting that any separately titled property presently owned or subsequently acquired shall be the separate property of the party in whose name title is held, free and clear from any claim made by the other party, including any increase in its value.  The parties further agreed that any marital property jointly titled shall be distributed pursuant to Domestic Relations Law § 236 (B) (5), and any debts, obligations or liabilities owed jointly shall be deemed to be owed by the parties in equal part.  However, the prenuptial agreement was silent as to child support and spousal maintenance.  The parties then proceeded to a three-day trial to determine equitable distribution, child support and spousal maintenance.

At the conclusion of the trial, Supreme Court determined, among things, that the wife was entitled to 75% in equitable distribution for the marital residence and retirement accounts, spousal support of $3,395.56 per month and child support of $5,000 per month, but was liable for 50% of a 2021 tax liability.  A final judgment of divorce was thereafter entered in accordance with the court's determination.  Separately, Supreme Court issued an order awarding the wife counsel fees of $30,000.  The husband appeals and the wife cross-appeals.

At the outset, we are unpersuaded by the husband's contention that Supreme Court erred in awarding the wife a distribution of 75% for the martial residence and retirement accounts.  “It is well settled that Supreme Court's equitable distribution award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236 (B) (5) (d)” (Kopko v Kopko, 229 AD3d 974, 977 [3d Dept 2024] [internal quotation marks and citations omitted], appeal dismissed 42 NY3d 1086 [2025];  see Breen v Breen, 222 AD3d 1202, 1206 [3d Dept 2023] ).  Those factors include, “the income and property of each party at the time of marriage, and at the time of the commencement of the action,” as well as “ the probable future financial circumstances of each party,” the length of the marriage and the age and health of the parties, “the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse[,] ․ any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration ․ [and] any other factor which the court shall expressly find to be just and proper” (Domestic Relations Law § 236 [B] [5] [d] ).  The “equitable distribution of marital property does not necessarily mean equal, and Supreme Court has substantial discretion in fashioning an award of equitable distribution” (Allen v Allen, 179 AD3d 1318, 1319 [3d Dept 2020] [internal quotation marks and citations omitted];  accord Reiser v Reiser, 242 AD3d 1319, 1321 [3d Dept 2025] ) and need not specifically cite the statutory factors relied upon “when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered” (Ramadan v Ramadan, 195 AD3d 1174, 1175 [3d Dept 2021] [internal quotation marks and citation omitted];  see King v King, 202 AD3d 1383, 1388 [3d Dept 2022] ).

At the commencement of trial, the parties entered into several stipulations.  Pertinent here, they agreed that any property individually acquired during the marriage by either party would remain the titled party's property.  As to the marital residence, which was jointly titled, the parties stipulated that, at the date of commencement, the appraised value was $425,000, with an outstanding mortgage balance of approximately $143,000 and an outstanding line of credit of $90,201.  The parties agreed that the husband would retain the marital residence, with the percentage of the equity going to the wife to be determined by the court.  The values of the marital retirement accounts were likewise stipulated, with the husband's and wife's individual retirement accounts being valued at $416,650.73 and $33,711, respectively.

For her part, the wife testified that she was 46 years old, in good health and was working on a part-time basis as a postpartum doula and a music teacher.  Although she worked in higher education prior to the marriage, she ceased full-time employment after the parties were married and their first child was born and instead took care of the parties' children and home.  The wife explained that she received little support in this regard owing to the husband's long work hours, six days a week.  As such, aside from small jobs, she asserted that she did not have a source of income and relied financially upon the husband, although she acknowledged that in 2023 she earned approximately $4,000 as a music teacher and $21,000 as a doula.  Nevertheless, the wife asserted that she did not have an individual bank account, whereas the husband had his own personal accounts, but that the husband deposited money into the parties' joint bank account for her use when needed and paid their credit card bills.  The wife similarly testified that she was not involved in the husband's real estate matters during their marriage and that she did not have access to the husband's financial accounts, only learning of his income when she signed tax returns.  She averred that the family's standard of living during the marriage was very comfortable, but that she now requires her parents' financial support to pay for her living expenses.  She testified that her current employment consisted of limited hours as a music teacher, substitute teacher and doula, and submitted evidence that her monthly expenses amounted to more than $11,000 and that her net worth was roughly $109,000.

As for the husband, he claimed monthly expenses of over $21,000 but did not disclose his net worth.  Concerning the income generated from his multiple businesses he explained that it fluctuated over the years, depending on the economy, with 2021 being a particularly lucrative year in which his earnings exceeded $700,000.  He acknowledged that, during the marriage, he purchased 10 properties as a source of income and placed those properties under his name alone.  In explanation as to why he did not include the wife on the titles for those properties, the husband essentially asserted that his omission was not a calculated action, that he never hid any of the purchases from the wife and she never asked to include her name on any of the rental properties or indicated any interest in being involved.  Regardless of the husband's motivation, the effect of these purchases was to convert marital income and assets into property that, under the terms of the prenuptial agreement, became solely his upon divorce.  As for the wife's contributions, the husband maintained that she had previously rejected his suggestions that she return to full-time employment once the children were attending school.

Although the husband's financial disclosure is incomplete, the record clearly shows that his assets dramatically exceed those of the wife.  Regarding the 10 properties acquired over the course of the marriage, which became the husband's separate property by virtue of him titling them in his name alone, only four were valued.  The equity in those four properties exceeds $470,000.  The husband also owns two car dealerships and other properties, which also were not valued, other than a representation that the dealerships have inventory exceeding $900,000.  The record also shows that the husband chose not to pay income taxes owed for 2021, thus incurring a debt exceeding $150,000, half of which, under the terms of the prenuptial agreement, the wife is responsible for.

Upon this record, it is our view that Supreme Court's distributive award was fair and reasonable and based upon consideration of the relevant statutory factors.  Significantly, the court found that although the prenuptial agreement defined the transactional nature of the parties' marriage, the husband maximized its provisions to enhance his personal gain by directing income toward investments in his name alone, contributing only nominal funds to the marital retirement accounts while not paying off the marital residence or the parties' tax liabilities, resulting in significant financial inequity to the wife.  Contrary to the husband's contentions, nothing in the record supports questioning the court's credibility assessments as to his explanations for his actions in applying income toward personal investments and away from the parties' shared assets (see Marshak v Marshak, 240 AD3d 1094, 1095 [3d Dept 2025] ).  The court further noted that during the marriage the husband controlled the finances and, although the family was well provided for, the wife did not receive any discretionary funds for her own use or savings.  As for the wife, the court found that she had devoted her time primarily to the care of the home and children.  Under these circumstances, we find no abuse of discretion in the court's unequal distribution of 75% of the equity of the marital residence and combined retirement accounts to the wife, where the husband retained the marital residence and the wife remained liable for 50% of the parties' 2021 tax liability (see Domestic Relations Law § 236 [B] [5] [d];  Marshak v Marshak, 240 AD3d at 1095;  Angello v Angello, 237 AD3d 1318, 1321 [3d Dept 2025];  DeSouza v DeSouza, 163 AD3d 1185, 1190–1191 [3d Dept 2018] ).

We turn next to the husband's challenge to Supreme Court's determination of the duration of the maintenance payments.  In fashioning the duration of a maintenance award, a trial court must consider the appropriate statutory factors, such as the age, health and earning capacity of the parties, “the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration,” the standard of living during the marriage, and “any other factor which the court shall expressly find to be just and proper” (Domestic Relations Law § 236[B][6][e][1] ).  “The amount and duration of a maintenance award are addressed to the sound discretion of the trial court and will not be disturbed provided that the statutory factors and the parties' predivorce standard of living are considered.  The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon” (McGovern v McGovern, 218 AD3d 1067, 1072 [3d Dept 2023] [internal quotation marks, brackets and citations omitted];  see Hughes v Hughes, 198 AD3d 1170, 1173 [3d Dept 2021];  St. Denny v St. Denny, 185 AD3d 1246, 1246–1247 [3d Dept 2020] ).  To this end, we are mindful that “[t]he primary purpose of maintenance is to encourage self-sufficiency by the recipient, and maintenance is appropriate where the marriage is of long duration, and the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor” (Hughes v Hughes, 200 AD3d 1404, 1406–1407 [3d Dept 2021] [internal quotation marks, brackets and citations omitted] ).

In rendering its determination, Supreme Court noted that the parties had been married just two months shy of 15 years prior to the commencement of the underlying action, such that the applicable advisory guidelines suggested a maintenance duration between 2.2 years to 4.4 years – being 15% to 30% of the length of the marriage (see Domestic Relations Law § 236 [B] [6] [f] [1] ).  In express consideration of several statutory factors, however, the court found that advisory schedule to be unjust and inappropriate under the circumstances.  Specifically, among other factors, the court considered the present and future earning capacity of the wife, the standard of living established during the marriage, the reduced or lost earning capacity of the wife in caring for the children and home with minimal support, the length of the marriage, and the wife's lack of separate property in her name alone or liquidity to otherwise support herself.  The court noted that the husband's net annual income in 2023 was $295,848, whereas the wife's was $19,413.  As to the parties' prenuptial agreement, the court re-emphasized the husband's maximization of its terms to secure numerous investment properties in his name alone during the marriage, finding that in doing so he had secured himself financially, allowing him to continue a standard of living comparable to that which he enjoyed during the marriage.  The record clearly demonstrates that the husband consistently used marital income to secure separate property and long-term income security for himself, at the same time limiting the accumulation of marital assets, thus exposing the wife to financial insecurity.  Although the duration of the maintenance award here of approximately nine years exceeds that which would be customary for a marriage of this length, under the unique circumstances of this case, and in view of the court's well-reasoned examination of the relevant statutory factors, we cannot conclude that the court's award was an abuse of discretion (see Domestic Relations Law § 236[B] [6] [e] [1];  Breen v Breen, 222 AD3d at 1205;  Robinson v Robinson, 133 AD3d 1185, 1186 [3d Dept 2015];  see also Harris v Schreibman, 200 AD3d 1117, 1121 [3d Dept 2021] ).  We also decline to modify the award as an independent exercise of discretion (see Leah R. v Taylor R., 244 AD3d 1425, 1432 [3d Dept 2025];  see generally Quinn v Quinn, 61 AD3d 1067, 1071 [3d Dept 2009] ).  As to the husband's related argument that maintenance awards should have been commenced only once the wife left the marital residence, “generally, [maintenance] awards are retroactive to the date an action for divorce is commenced,” and we find no basis to reverse the court's decision to adhere to that general rule here (Louie v Louie, 203 AD3d 1520, 1522 [3d Dept 2022] ).

The husband's remaining challenges do not require extended discussion.  Initially, we find no abuse of discretion in Supreme Court's decision to upwardly deviate from the presumptive child support award.  The record here reflects that Supreme Court applied the appropriate three-step formula in reaching an initial basic child support obligation (see Domestic Relations Law § 240[1–b];  Allen v Allen, 179 AD3d at 1321) and that, in finding that same would be unjust and inappropriate, it properly articulated its reasons for upwardly deviating therefrom (see Domestic Relations Law § 240 [1–b] [f];  Donna E. v Michael F., 185 AD3d 1179, 1180 [3d Dept 2020] ).  Specifically, the court cited the substantial disparity in the financial resources and income of each parent, the self-serving financial planning of the husband during the marriage resulting in the wife's diminished resources, the wife's limited past and future employment and the predivorce standard of living for the children.  The parties' shared equal custody of the children does not negate the financial inequalities between the parties.  In consideration of these factors, we discern no abuse of discretion in the court's upward deviation from its basic child support calculation of roughly $3,580 per month to a total of $5,000 per month (see Holterman v Holterman, 3 NY3d 1, 14 [2004];  Diop v Gueye, 237 AD3d 1298, 1302 [3d Dept 2025] ).  We likewise perceive no error in the court awarding child support retroactive to the date of commencement (see Domestic Relations Law § 236 [B] [7] [a];  Esposito–Shea v Shea, 94 AD3d 1215, 1218 [3d Dept 2012] ).

We are similarly unpersuaded by the husband's challenge to the court's award of $30,000 in counsel fees to the wife.  “In a divorce action, there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse” (Aiken v Aiken, 244 AD3d 1452, 1454 [3d Dept 2025];  see Domestic Relations Law § 237 [a];  Angello v Angello, 237 AD3d at 1322).  “An award of counsel fees should consider the totality of the circumstances, including but not limited to the parties' financial circumstances;  the relative merit of the parties' positions;  the time commitment involved;  the complexity and difficulty of the matters;  the nature of the services provided;  counsel's experience;  the results obtained;  and the cause and effect of unnecessary delays” (Aiken v Aiken, 244 AD3d at 1454 [internal quotation marks, brackets and citations omitted] ).  “Absent an abuse of discretion, a court's determination directing a party to pay counsel fees will not be disturbed” (id. [internal quotation marks and citations omitted] ).  In determining the award of counsel fees in favor of the wife, Supreme Court underscored the disparate financial circumstances of the parties, with emphasis on the husband's concerted financial planning during the marriage that resulted in significant gains to his earnings.  Moreover, the court found that the wife had consistently cooperated in resolving various issues during the litigation process, but that the husband had to be “prodded throughout the discovery process” resulting in further conferences and motion practice.  In view of the totality of the circumstances presented, and the court's well-reasoned determination, we find no basis to disturb the court's award of counsel fees in the amount of $30,000 to the wife (see id. at 1454–1455;  Morrissey v Morrissey, 224 AD3d 940, 940–941 [3d Dept 2024] ).

Finally, the wife contends that Supreme Court erred in assigning her 50% of the 2021 joint tax liability.  However, inasmuch as her contentions in this regard are raised for the first time on appeal, they are not properly before us (see MLB Constr.  Servs., LLC v Lake Ave. Plaza, LLC, 156 AD3d 983, 985 [3d Dept 2017] ).  To the extent that certain of the wife's arguments on this issue are preserved, we find them unavailing (see generally Bisimwa v St. John Fisher Coll., 194 AD3d 1467, 1470 [4th Dept 2021];  Natale v Ernst, 63 AD3d 1406, 1407 [3d Dept 2009], lv denied 13 NY3d 716 [2010] ).

The parties' remaining contentions, to the extent not expressly addressed herein, have been considered and found to be unpersuasive.

ORDERED that the judgment is affirmed, without costs.

Mackey, J.

Clark, J.P., Pritzker, Ceresia and Corcoran, JJ., concur.