66.2.11 - - - Arrigo

Arrigo v. Arrigo, --- A.D.3d ---, --- N.Y.S.2d --- (Second Dept. 2007)(2007 WL 926881)(Mar. 27, 2007):

Supreme Court, Appellate Division, Second Department, New York.

Nancy Arrigo, respondent,

v.

Christopher Arrigo, appellant.

Mar. 27, 2007

.

HOWARD MILLER, J.P. ROBERT A. SPOLZINO DAVID S. RITTER MARK C. DILLON, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Donovan, J), dated September 27, 2004, as, upon a decision of the same court (Shapiro, J.), dated August 5, 2004, made after a nonjury trial, awarded him only a 25% share of the marital assets and denied him an award of maintenance.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the husband's contention, the Supreme Court did not err in awarding him only a 25% share of the marital assets. Equitable distribution does not necessarily mean equal distribution, and it is evident that the Supreme Court properly considered the relevant statutory factors in fashioning the distribution in the instant case (see Falgoust v. Falgoust, 15 AD3d 612). The parties' marriage was of relatively short duration, both parties are relatively young and healthy, and there are no children of the marriage. Furthermore, the husband's financial contributions to the marriage were minimal. Thus, the court properly awarded him only a 25% share of the marital assets (see DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879; Greene v. Greene, 250 A.D.2d 572; Moody v. Moody, 172 A.D.2d 730; Barnes v. Barnes, 106 A.D.2d 535).

Contrary to the husband's further contention, the Supreme Court properly denied him an award of maintenance. The amount and duration of maintenance to be awarded is a matter committed to the sound discretion of the trial court (see Keane v. Keane, 25 AD3d 729). Every case of maintenance must be considered on its unique facts (see Popelaski v. Popelaski, 22 AD3d 735).

Here, the marriage was relatively short, and both parties are relatively young and healthy. Although the husband earned substantially less income than the wife, he has three college degrees. An award of maintenance is not determined by actual earnings, but rather by earning capacity (see Aborn v. Aborn, 196 A.D.2d 561). The husband quit many jobs of his own volition, despite the wife's wishes that he maintain steady employment. Furthermore, he received a distributive award of 25% of the marital assets. Thus, the court properly denied him an award of maintenance (cf. Wexler v. Wexler, 34 AD3d 458; Keane v Keane, supra; Bourne v Bourne, 237 A.D.2d 317).

The husband's remaining contention regarding enforcement of an alleged agreement dated May 14, 1996, is not properly before us as he raises it for the first time on appeal (see McNamee Constr. Corp. v. City of New Rochelle, 29 AD3d 544).

MILLER, J.P., SPOLZINO, RITTER and DILLON, JJ., concur.

  The

66.2.8 - - - Lemesis

Lemesis v. Lemesis, --- A.D.3d ---, --- N.Y.S.2d --- (Fourth Dept. 2007)(2007 WL 779760)(2007 N.Y. Slip Op. 02339)(Mar. 16, 2007):

Supreme Court, Appellate Division, Fourth Department, New York.

Bridget Fitzgerald LEMESIS, Now known as Bridget Fitzgerald Scott, Plaintiff-Respondent,

v.

Aldis A. LEMESIS, Defendant-Appellant.

Mar. 16, 2007

In this divorce action, defendant contends that Supreme Court erred in granting that part of plaintiff's postjudgment cross motion seeking a qualified domestic relations order directing that plaintiff's share in defendant's federal employment retirement system (FERS) benefits is to be calculated as if defendant had opted for the highest benefit option available. We agree. According to the terms of the parties' separation agreement, which was incorporated but not merged in the judgment of divorce, defendant's FERS pension was to be divided in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). Defendant remarried following the divorce and, upon his retirement, he opted for a distribution plan that created a survivor benefit for his second wife and reduced the benefits that he would have received if he had opted for the self-only distribution plan. We agree with defendant that the court erred in directing that plaintiff's share of the FERS pension benefits be calculated as if defendant had opted for the highest benefit option, i.e., the self-only distribution plan, inasmuch as there was no express provision in the separation agreement requiring him to do so (see Von Buren v. Von Buren, 252 A.D.2d 950), and we therefore modify the order accordingly.

Contrary to defendant's further contention, the court properly determined that plaintiff was entitled to an equitable share of the monthly retirement supplement benefits and any cost of living adjustments as part of the pension benefits despite the absence of an express provision to that effect in the separation agreement (see Pagliaro v. Pagliaro, 31 AD3d 728, 730).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion with respect to calculation of plaintiff's share of defendant's federal employment retirement system benefits and as modified the order is affirmed without costs.

 following case details how a former spouse can lose out on alot of money.