Opinion
1112 CA 17–01559
02-01-2019
Jennifer HAGGERTY, Plaintiff–Appellant, v. Ryan HAGGERTY, Defendant–Respondent. (Appeal No. 1.)
WILLIAM R. HITES, BUFFALO, FOR PLAINTIFF–APPELLANT. RYAN D. HAGGERTY, DEFENDANT–RESPONDENT PRO SE. MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILDREN.
WILLIAM R. HITES, BUFFALO, FOR PLAINTIFF–APPELLANT.
RYAN D. HAGGERTY, DEFENDANT–RESPONDENT PRO SE.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified in the exercise of discretion and on the law by vacating the award of $14,000 in attorneys' fees to defendant and as modified the judgment is affirmed without costs.
Memorandum: In appeal No. 1, plaintiff appeals from a judgment of divorce that, among other things, calculated retroactive and prospective child support, distributed the parties' assets and debts, and made an award of attorneys' fees to defendant. In appeal No. 2, plaintiff appeals from an intermediate order addressing issues from a trial on financial matters as well as issues raised in a posttrial motion. Due to the fact that the order in appeal No. 2 is subsumed in the final judgment in appeal No. 1, we conclude that appeal No. 2 must be dismissed (see Maniscalco v. Maniscalco [Appeal No. 2], 109 A.D.3d 1129, 1129–1130, 971 N.Y.S.2d 710 [4th Dept. 2013] ; see generally Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ).
As a preliminary matter, plaintiff contends that Supreme Court erred in permitting the attorney for the child (AFC) to participate in the financial trial. We reject that contention inasmuch as issues of child support were to be determined at that trial (see generally Macaluso v. Macaluso, 145 A.D.3d 1295, 1296, 43 N.Y.S.3d 599 [3d Dept. 2016] ). We further conclude that there is no merit to plaintiff's contention that the court erred in denying her motion to remove the AFC. Plaintiff's " ‘unsubstantiated allegations of bias’ " were insufficient to support her application to remove the AFC ( Matter of Brooks v. Greene, 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ).
Plaintiff further contends that she is entitled to a credit for excess child support payments. We reject that contention. "It has long been held that there is a ‘strong public policy against restitution or recoupment of support overpayments’ ... and nothing in this record shows it was error to deny that relief" ( Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009], rearg. denied 13 N.Y.3d 888, 893 N.Y.S.2d 834, 921 N.E.2d 602 [2009] ). Contrary to plaintiff's contention, we conclude that the court did not abuse or improvidently exercise its discretion in using the parties' tax returns for the actual years under review as opposed to the tax returns from the year before each year under review inasmuch as the court was being asked to review retroactively the pendente lite award of child support (see generally Domestic Relations Law § 240[1–b][b][5][i] ).
We reject plaintiff's challenges to the court's determination concerning prospective child support. Contrary to plaintiff's contentions, the court properly used the parties' most recent tax returns to calculate the amount of future child support (see generally Domestic Relations Law § 240[1–b][b][5][i] ), and the presumptively correct amount of child support did not result in an award that was "unjust or inappropriate" ( § 240[1–b][f], [g] ; see Matter of Gillette v. Gillette , 8 A.D.3d 1102, 1103, 778 N.Y.S.2d 362 [4th Dept. 2004] ; Veitch v. Veitch, 6 A.D.3d 1094, 1094, 775 N.Y.S.2d 636 [4th Dept. 2004] ).
Addressing next issues of equitable distribution, we reject plaintiff's contention that the court's determinations were erroneous. "It is well settled that [e]quitable distribution presents issues of fact to be resolved by the trial court, and its judgment should be upheld absent an abuse of discretion ... It is also well settled that trial courts are granted substantial discretion in determining what distribution of marital property[—including debt—]will be equitable under all the circumstances" ( Wagner v. Wagner, 136 A.D.3d 1335, 1336, 25 N.Y.S.3d 471 [4th Dept. 2016] [internal quotation marks omitted] ). Preliminarily, plaintiff contends that she should have been given a credit for certain marital assets that she contends were dissipated by defendant. Defendant, however, established that he used those particular assets to pay for marital expenses (see Pudlewski v. Pudlewski, 309 A.D.2d 1296, 1297, 765 N.Y.S.2d 570 [4th Dept. 2003] ; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374, 737 N.Y.S.2d 111 [2d Dept. 2002] ). Plaintiff further contends that the court erred in conditioning her ability to claim one of the parties' two children as a dependency exemption for tax purposes on her ability to "remain[ ] current with her child support obligation for a full calendar year." Given plaintiff's prior failure to pay child support, we conclude that the imposition of such a condition was not an abuse of the court's discretion (see Rooney v. Rooney [Appeal No. 3], 92 A.D.3d 1294, 1296, 938 N.Y.S.2d 724 [4th Dept. 2012], lv denied 19 N.Y.3d 810, 2012 WL 3743855 [2012] ; see generally Agnello v. Payne, 26 A.D.3d 837, 837, 809 N.Y.S.2d 344 [4th Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006] ).
The court directed that the "parties' retirements" be divided pursuant to the Majauskas formula, but plaintiff contends that we should modify the judgment inasmuch as it was undisputed that she did not have a retirement plan. We reject that contention. At the hearing, it was established that defendant had two retirement plans, one from his prior military service and one from his then-current employment. The court thus did not err in ordering the division of multiple retirement plans. To the extent that plaintiff did not have a retirement plan, there is nothing to be divided by Majauskas, and no need to modify the judgment.
Contrary to plaintiff's further contention, we perceive no basis to modify the court's equitable distribution of the parties' debts. We address specifically the parties' student loans, which totaled over $250,000. The court concluded that each party "utilized education loans to pay for the tuition of his/her graduate program and to cover family expenses during that time." Although "[t]here may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse" ( Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009] ), we conclude that the court did not abuse or improvidently exercise its discretion in directing that each party be responsible for his or her student loan debt (see Gelb v. Brown, 163 A.D.2d 189, 194, 558 N.Y.S.2d 934 [1st Dept. 1990] ; see also Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582 [2d Dept. 2015] ; Dashnaw v. Dashnaw, 11 A.D.3d 732, 734–735, 783 N.Y.S.2d 93 [3d Dept. 2004] ).
Both plaintiff and defendant sought an award of attorneys' fees, and the court ultimately directed plaintiff to pay $14,000 to defendant's attorney. We agree with plaintiff that the award should be vacated. "The decision to award ... attorney[s'] fees 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[ ]" ( O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712 [1985] ). Under the circumstances of this case, where neither party is a "less monied spouse" ( Domestic Relations Law § 237[a] ), and plaintiff has significantly more student loan debt than defendant, we conclude in the exercise of our discretion that the award should be vacated and that each party should be responsible for his or her own attorneys' fees. We therefore modify the judgment accordingly.
We have reviewed plaintiff's remaining contention, i.e., that she was denied her right to a fair trial, and we conclude that it lacks merit.