Opinion
2013-05702, Index No. 2318/09.
2015-04-08
Thomas HEYDT–BENJAMIN, respondent, v. Ava Dawn HEYDT–BENJAMIN, appellant.
Orrick, Herrington & Sutcliffe, LLP, New York, N.Y. (Laurie Strauch Weiss, John Ansbro, Rene Kathawala, and Michael A. Keough of counsel), and Alexandra Lewis–Reisen, New York, N.Y., for appellant (one brief filed). Margaret A. Clark, Katonah, N.Y., for respondent.
Orrick, Herrington & Sutcliffe, LLP, New York, N.Y. (Laurie Strauch Weiss, John Ansbro, Rene Kathawala, and Michael A. Keough of counsel), and Alexandra Lewis–Reisen, New York, N.Y., for appellant (one brief filed). Margaret A. Clark, Katonah, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, BETSY BARROS, JJ.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated April 5, 2013, as, upon a decision of the same court, also dated April 5, 2013, made after a nonjury trial, denied her application for equitable distribution of the plaintiff's enhanced earnings and pension, determined that her student loan debt was not marital debt, and denied her an award of maintenance and an attorney's fee.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The Supreme Court properly concluded that the defendant failed to present evidence of any enhanced earning capacity from the plaintiff's graduate degree. The “valuation of a professional degree or license is largely dependent upon expert testimony, and it is for the trial court to ‘evaluate this testimony, assign to it [the] weight the court believe[s] it deserve[s] and arrive at determinations that were supported by the credible evidence introduced at trial’ ” (Esposito–Shea v. Shea, 94 A.D.3d 1215, 1215–1216, 941 N.Y.S.2d 793, quoting Evans v. Evans, 55 A.D.3d 1079, 1080, 866 N.Y.S.2d 788). Here, the defendant failed to timely engage an expert to evaluate that degree ( see22 NYCRR 202.16 [g] ). Furthermore, the Supreme Court properly concluded that there was insufficient evidence presented to support the defendant's application for equitable distribution of the plaintiff's pension. The document which the defendant sought to admit to show the existence of a pension was written in German and not accompanied by the requisite translator's attestation ( see Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201; CPLR 2101[b] ). In addition, the court properly determined that the defendant alone was required to bear the obligation of repayment of the balance of her student loan because no benefit inured to the marriage ( see Dashnaw v. Dashnaw, 11 A.D.3d 732, 735, 783 N.Y.S.2d 93; see also Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422 n., 881 N.Y.S.2d 369, 909 N.E.2d 62).
The Supreme Court did not improvidently exercise its discretion in declining to award maintenance to the defendant. The 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 ( see Lubrano v. Lubrano, 122 A.D.3d 807, 808, 995 N.Y.S.2d 741; DiBlasi v. DiBlasi, 48 A.D.3d 403, 852 N.Y.S.2d 195; Griggs v. Griggs, 44 A.D.3d 710, 844 N.Y.S.2d 351; Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631). Here, the defendant admitted at trial that she had been cohabiting with her boyfriend and their child for more than two years, and that she received adequate economic support ( cf. Clark v. Clark, 33 A.D.3d 836, 838, 827 N.Y.S.2d 159; Matter of Ciardullo v. Ciardullo, 27 A.D.3d 735, 736, 815 N.Y.S.2d 599; Matter of Emrich v. Emrich, 173 A.D.2d 818, 819, 571 N.Y.S.2d 49; Scharnweber v. Scharnweber, 105 A.D.2d 1080, 482 N.Y.S.2d 187, affd. 65 N.Y.2d 1016, 494 N.Y.S.2d 100, 484 N.E.2d 129).
The Supreme Court did not improvidently exercise its discretion in denying the defendant's application for an award of an attorney's fee ( seeDomestic Relations Law § 237[a] ). Both parties incurred substantial debt for attorney's fees, some of which was caused by the defendant unnecessarily prolonging the litigation ( see Vitale v. Vitale, 112 A.D.3d 614, 615, 977 N.Y.S.2d 258; Ciampa v. Ciampa, 47 A.D.3d 745, 748, 850 N.Y.S.2d 190; Beth M. v. Joseph M., 12 Misc.3d 1188[A], 2006 WL 2128157, 2006 N.Y. Slip Op. 51490[U] [Sup.Ct., Nassau County] ).