ROMEO v. MUENZLER ROMEO

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

Carmine ROMEO, Appellant, v. Debra MUENZLER–ROMEO, Respondent.

2017–10149

Decided: February 13, 2019

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ. Law Office of Gambino & Demers, LLC, Poughkeepsie, N.Y. (Thomas M. Gambino of counsel), for appellant. Law Offices of David J. Squirrell, P.C., Bedford Hills, NY, for respondent.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of divorce of the Supreme Court, Dutchess County (Lisa E. Rubenstein, Ct. Atty. Ref.), dated August 3, 2017.  The judgment of divorce, insofar as appealed from, upon a decision of the same court dated March 6, 2017, made after a nonjury trial, awarded the defendant maintenance in the sum of $ 1,900 per month for a period of eight years and attorneys' fees in the sum of $ 26,000.

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

The parties were married on August 31, 1995.  At the time of the marriage, the plaintiff was retired from the New York City Police Department and receiving a pension.  During the marriage, the plaintiff was employed part-time, and the defendant worked as a substitute teacher.  In April 2014, the plaintiff commenced this action for a divorce and ancillary relief.  After a nonjury trial, the Supreme Court issued a judgment of divorce dated August 3, 2017, which, among other things, awarded the defendant maintenance in the sum of $ 1,900 per month for a period of eight years and attorneys' fees in the sum of $ 26,000.  The plaintiff appeals from those portions of the judgment of divorce.

“[T]he 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;  see Westbrook v. Westbrook, 164 A.D.3d 939, 942, 83 N.Y.S.3d 560;  Repetti v. Repetti, 147 A.D.3d 1094, 1096, 47 N.Y.S.3d 447).  The factors to consider in awarding maintenance include, among others, the standard of living of the parties during the marriage, the distribution of marital property, the duration of the marriage, the health and present and future earning capacity of both parties, and the ability of the party seeking maintenance to become self-supporting (see Domestic Relations Law former § 236[B][6][a];  Belilos v. Rivera, 164 A.D.3d 1411, 1414, 84 N.Y.S.3d 536;  Westbrook v. Westbrook, 164 A.D.3d at 942, 83 N.Y.S.3d 560;  Horn v. Horn, 145 A.D.3d 666, 668, 43 N.Y.S.3d 395).  Here, contrary to the plaintiff's contention, the Supreme Court considered the relevant statutory factors (see Kumar v. Chander, 149 A.D.3d 709, 711, 51 N.Y.S.3d 177) and providently exercised its discretion in awarding the defendant maintenance in the sum of $ 1,900 per month for a period of eight years.

“The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court” (Black v. Black, 140 A.D.3d 816, 816, 33 N.Y.S.3d 379 [internal quotation marks omitted];  see Culen v. Culen, 157 A.D.3d 930, 932, 69 N.Y.S.3d 881).  “In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions” (Mueller v. Mueller, 113 A.D.3d 660, 661, 978 N.Y.S.2d 696;  see Margolis v. Cohen, 153 A.D.3d 1390, 61 N.Y.S.3d 328;  Matter of Weiss v. Rosenthal, 135 A.D.3d 780, 781, 22 N.Y.S.3d 592).  Additionally, the court may also consider whether one party has engaged in conduct or taken positions resulting in a delay of the proceedings or engaged in unnecessary litigation (see Giallo–Uvino v. Uvino, 165 A.D.3d 894, 897, 86 N.Y.S.3d 125;  Matter of Weiss v. Rosenthal, 135 A.D.3d at 781, 22 N.Y.S.3d 592;  Prichep v. Prichep, 52 A.D.3d 61, 64, 858 N.Y.S.2d 667).  Here, considering the disparity of income between the parties, the relative merits of the parties' positions, and the plaintiff's conduct that delayed the proceedings, the Supreme Court providently exercised its discretion in awarding the defendant attorneys' fees in the sum of $ 26,000 (see Lubrano v. Lubrano, 122 A.D.3d 807, 808, 995 N.Y.S.2d 741).

The plaintiff's remaining contentions are without merit.

RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.

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