Opinion
August 8, 1988
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Ordered that the judgment is modified, on the law and the facts and in the exercise of discretion, by (1) deleting from subsection "d" of the eighth decretal paragraph thereof the amounts "$6,250" and "$12,500", respectively, and substituting therefore the amounts "$2,875" and "$5,750", respectively; (2) deleting from the eleventh decretal paragraph thereof the amount "$6,250.00" and substituting therefor "$2,875"; and (3) deleting therefrom the thirteenth decretal paragraph concerning counsel fees; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and determination in accordance herewith.
The trial court did not abuse its discretion in awarding the defendant the option of purchasing the plaintiff's equitable share of the marital residence from him at a price which is the average of the two appraisals submitted at the trial (see, Shahidi v Shahidi, 129 A.D.2d 627; see also, Siegel v Siegel, 132 A.D.2d 247, 252-254, appeal dismissed 71 N.Y.2d 1021).
The trial court did not abuse its discretion in awarding the defendant maintenance of $475 per week without temporal limitation, as well as health insurance. The defendant is 52 years old. During the 24-year marriage, she was a homemaker who did not work outside the home, except for a brief period when she was employed 2 or 3 days a week on a per diem basis as a substitute elementary school teacher. It is clear that she subordinated her own career to bear and raise three children and to assist the plaintiff, now 55 years of age, with his successful careers as a stockbroker and chain store operator, where his average earnings prior to trial were approximately $100,000 a year in addition to substantial fringe benefits (see, Shahidi v Shahidi, supra; Delaney v Delaney, 111 A.D.2d 111, lv dismissed 65 N.Y.2d 609, order resettled 114 A.D.2d 312; Murphy v Murphy, 110 A.D.2d 688).
Since there was no proof as to the value of the plaintiff's tax shelter, the trial court properly awarded the defendant her equitable share of the contribution the plaintiff made to the shelter prior to the commencement of the marital action. However, the court erred in awarding the defendant one half of a $6,750 contribution made after commencement of the marital action. Consequently subsection "d" of the eighth decretal paragraph and the eleventh decretal paragraph are modified accordingly.
The trial court did not abuse its discretion in valuing the family silver since the plaintiff offered no proof at trial disputing the defendant's proof as to the items remaining in the marital home at the time of trial.
Finally, it was error to award counsel fees on the basis of affirmations alone, in the absence of a stipulation regarding the amount due (Price v Price, 113 A.D.2d 299, 309, affd 69 N.Y.2d 8). Accordingly, the issue of the defendant's entitlement to, and the amount of, counsel fees should be addressed at a hearing. If the hearing court awards counsel fees, the court should determine an appropriate installment schedule for the payment of counsel fees, in view of the plaintiff's additional obligations. However, we decline to disturb the schedule ordered by the trial court for the payment of the equitable distribution awards to the defendant. Thompson, J.P., Bracken, Eiber and Spatt, JJ., concur.