Opinion
October 16, 1995
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff contends that the Supreme Court erred by failing to award her maintenance in light of its decision to require her to pay the carrying costs on the marital residence ( see, e.g., Berg v. Berg, 186 A.D.2d 236). We conclude that this issue is academic. The plaintiff concedes in her brief that the marital residence was sold at a foreclosure sale shortly after the court issued its decision in this matrimonial action. The plaintiff, who was earning an annual salary of about $36,000, did not establish that an award of maintenance was warranted ( see, Domestic Relations Law § 236 [B] [6] [a]).
Although a pension is normally subject to equitable distribution, the plaintiff failed to request, either during the trial or in her post-trial memorandum, that the court award her a portion of the defendant's pension. Moreover, no evidence was offered at trial with regard to the defendant's pension. Under these circumstances, the court did not err by failing to include the defendant's pension in the equitable-distribution award ( see, e.g., Cleary v. Cleary, 171 A.D.2d 1076; Del Gado v. Del Gado, 129 A.D.2d 426; see also, Michalek v. Michalek, 114 A.D.2d 655).
Finally, the court did not improvidently exercise its discretion by failing to award counsel fees to the plaintiff. The plaintiff's attorney did not make a proper application for such fees prior to entry of the judgment ( see, Domestic Relations Law § 237; Taylor v. Taylor, 120 A.D.2d 355). Sullivan, J.P., O'Brien, Copertino and Krausman, JJ., concur.