Cowles v. Stahmer

—Judgment, Supreme Court, New York County (Fern FisherBrandveen, J.), entered September 12, 1997, which, inter alia, awarded plaintiff equitable distribution in the total amount of $1,011,116, $4,500 per month maintenance until she reaches the age of 65, and $115,000 in counsel fees, and which directed defendant to pay $91,377 in retroactive pendente lite relief, modified, on the law and the facts, to the extent of reducing the equitable distribution award by $86,900 to $924,216, vacating that part of the judgment directing defendant to pay $91,377 in retroactive pendente lite relief and directing instead [104] that defendant’s retroactive maintenance obligation be computed on the basis of the $4,500 monthly maintenance obligation set forth in the judgment, and to the further extent of awarding plaintiff prejudgment interest from the date of valuation of the marital estate, and otherwise affirmed, without costs. Order, same court and Justice, entered February 20, 1998, which upwardly modified plaintiff’s maintenance award from $4,500 to $6,000 pending defendant’s appeal from the September 12, 1997 divorce judgment, and awarded plaintiff $35,000 in appellate counsel fees, unanimously modified, on the law and the facts, to the extent of vacating that part of the order awarding counsel fees, and otherwise affirmed, without costs. With respect to the determination of the equitable distribution award, the IAS Court appropriately included as marital property 25% of the appreciation of defendant’s separate assets since the appreciation of those assets (primarily securities accounts) during the marriage was at least partially attributable to defendant’s efforts (see, Hartog v Hartog, 85 NY2d 36, 46-49). Once the fact finder concludes that the titled spouse engaged in active efforts with respect to his or her separate nonpassive assets “even to a small degree” (supra, at 48), then the appreciation in that asset is, to a proportionate degree, marital property. “By considering the extent and significance of the titled spouse’s efforts in relation to the active efforts of others and any additional passive or active factors, the fact finder must then determine what percentage of the total appreciation constitutes marital property subject to equitable distribution” (supra, at 48-49 [citations omitted]). Although we agree with nearly all of the IAS Court’s remaining findings in connection with the equitable distribution award, certain modifications are in order. First, the award to plaintiff should be reduced by $86,900, since plaintiff was only entitled to half of the $173,800 of distributable funds in defendant’s SGI receivables account; the IAS Court, by reason, no doubt, of inadvertent miscalculation, awarded plaintiff the entire $173,800. Second, the judgment should be amended to entitle plaintiff to pre-judgment interest from the date of the marital estate’s valuation (see, Maharam v Maharam, 245 AD2d 94; see also, Selinger v Selinger, 232 AD2d 471, lv denied 90 NY2d 842). Regarding spousal maintenance, we find the judgment’s award to plaintiff of $4,500 per month until she reaches the age of 65 reasonable when considered in light of the relevant factors set forth in Domestic Relations Law § 236 (B) (6). However, the IAS Court’s upward modification of that award to [105] $7,036 per month for the purpose of calculating defendant’s retroactive pendente lite maintenance obligation was improper, given plaintiffs posttrial request that the permanent maintenance awarded (i.e., $4,500 per month) be made retroactive to October 14, 1993. Finally, the award to plaintiff of legal fees in the amount of $115,000 was sufficient to enable her to litigate the action (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879). Turning now to the appeal from the order of February 20, 1998, postdating the judgment, the IAS Court’s upward modification of plaintiffs maintenance award pending the instant appeal from the judgment was, under the circumstances, an appropriate exercise of discretion. In determining plaintiffs permanent monthly maintenance entitlement, the IAS Court had supposed that plaintiff would, in addition to monthly maintenance payments, have simultaneous access to a large equitable distribution award and the income therefrom. When it became apparent by reason of defendant’s appeal from the divorce judgment and the stay obtained by him in connection therewith, that plaintiff would not, in fact, gain access to the equitable distribution award until defendant’s appeal of the divorce judgment had run its course and, accordingly, that there would be a significant period during which plaintiff would not enjoy the level of economic security contemplated by the judgment, the court properly increased the monthly maintenance on an interim basis. We modify the appealed order only to the extent of vacating its award of $35,000 in appellate counsel fees to plaintiff. The affidavit submitted by plaintiffs attorney in support of the fee request conclusorily asserting that plaintiff would incur fees of $100,000 in responding to the appeal was insufficient to justify even the $35,000 award made (see, Aldin v Aldin, 149 AD2d 348). Plaintiff may reapply for an award of appellate attorney’s fees once counsel is able to detail the services for which such fees are sought. We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Rubin, Williams and Andrias, JJ.