NIELSEN v. NIELSEN

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Joyce L. NIELSEN, Appellant, v. William A. NIELSEN, Respondent.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, PIGOTT, CALLAHAN and FALLON, JJ. Ward, Brenon & Divita (Dennis Ward, of counsel), Williamsville, for Plaintiff-Appellant. Ruthanne G. Sanchez, Watertown, for Defendant-Respondent.

 “Questions of maintenance are addressed to the sound discretion of the trial court” (Torgersen v. Torgersen, 188 A.D.2d 1023, 1024, 592 N.Y.S.2d 539, lv. denied 81 N.Y.2d 709, 599 N.Y.S.2d 803, 616 N.E.2d 158).   We reject plaintiff's contention that Supreme Court abused its discretion in declining to award maintenance (see, Knight v. Knight, 231 A.D.2d 847, 648 N.Y.S.2d 415).   We further reject the contention that the court abused its discretion in denying plaintiff's request for an award of counsel fees (see, Torgersen v. Torgersen, supra, at 1024, 592 N.Y.S.2d 539) and add that an “award to plaintiff for counsel fees generated by this appeal is not warranted and in the exercise of our discretion we deny the request” (Bushorr v. Bushorr, 129 A.D.2d 989, 514 N.Y.S.2d 674;  see, DiSanto v. DiSanto, 198 A.D.2d 838, 839, 604 N.Y.S.2d 413).   The court properly allocated between the parties the credit card debt incurred prior to the separation (see, Savage v. Savage, 155 A.D.2d 336, 547 N.Y.S.2d 306) and properly determined the value of the parties' vehicle (see, Daisernia v. Daisernia, 188 A.D.2d 944, 946, 591 N.Y.S.2d 890).

 The court erred, however, in determining that the severance payment of $52,500 received by defendant after the commencement of the divorce action constituted separate property.   Upon our review of the evidence, we conclude that the severance payment constituted compensation for past services rather than an incentive for future services (see, DeJesus v. DeJesus, 90 N.Y.2d 643, 652, 665 N.Y.S.2d 36, 687 N.E.2d 1319;  Olivo v. Olivo, 82 N.Y.2d 202, 207-208, 604 N.Y.S.2d 23, 624 N.E.2d 151).   The record further establishes that 95% of the severance payment, i.e., $49,875, was earned during the marriage and constitutes marital property.   Thus, we modify the judgment by awarding plaintiff $24,937.50, one half of the $49,875.

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: