SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

31 

CA 12-00519 

PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND MARTOCHE, JJ. 

 

 

CAROL H. SCULLY, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

DANIEL J. SCULLY, DEFENDANT-RESPONDENT. 

 

ZDARSKY SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF

COUNSEL), FOR PLAINTIFF-APPELLANT. 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR DEFENDANT-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (John F.

O’Donnell, J.), entered October 14, 2011. The judgment, inter alia,

equitably distributed the marital assets of the parties. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by directing defendant to obtain a

life insurance policy with plaintiff as the beneficiary in the amount

of $500,000 and to maintain that policy until the youngest child

reaches the age of majority and the judgment is otherwise affirmed

without costs. 

Memorandum: Plaintiff appeals from certain parts of a judgment

of divorce that, inter alia, directed defendant to pay to plaintiff

the amount of $30,160 per year in child support and to pay his pro

rata share of 80% of the children’s private school tuition. Contrary

to plaintiff’s contention, we conclude that Supreme Court did not

abuse its discretion in refusing to award child support on the

parties’ combined income in excess of $130,000 (see Burns v Burns, 70

AD3d 1501, 1502; Frost v Frost, 49 AD3d 1150, 1151). In deciding to

limit the child support award to the first $130,000 in combined

parental income, the court properly considered the factors set forth

in Domestic Relations Law § 240 (1-b) (f), including the fact that the

divorce would not result in a change in the children’s standard of

living (see Burns, 70 AD3d at 1502). Plaintiff’s contention that the

court erred in calculating the parties’ pro rata shares was raised for

the first time in her reply brief and thus that contention is not

properly before us on appeal (see Turner v Canale, 15 AD3d 960, 960,

lv denied 5 NY3d 702). 

We reject plaintiff’s contention that the court erred in ordering

that defendant’s maintenance obligation be terminated on December 31,

2011. “ ‘As a general rule, the amount and duration of maintenance
-2- 31 

CA 12-00519 

are matters committed to the sound discretion of the trial court’ ”

(Frost, 49 AD3d at 1150-1151). We conclude that the court’s

determination here to terminate maintenance on December 31, 2011 was

not an abuse of discretion inasmuch as the court properly considered

the factors set forth in Domestic Relations Law § 236 (B) (6) (a) (see

Smith v Winter, 64 AD3d 1218, 1220, lv denied 13 NY3d 709). Contrary

to plaintiff’s further contention, we conclude that the court did not

abuse its discretion in directing that defendant was not obligated to

begin paying his pro rata share of the children’s private high school

tuition until January 1, 2012 (see generally Fruchter v Fruchter, 288

AD2d 942, 943). 

We also conclude that the court properly distributed the marital

property. Plaintiff “ ‘failed to trace the source of the funds [that

she contended were separate property] with sufficient particularity to

rebut the presumption that they were marital property’ ” (Bailey v

Bailey, 48 AD3d 1123, 1124; see Bennett v Bennett, 13 AD3d 1080, 1082,

lv denied 6 NY3d 708). Contrary to plaintiff’s contention, the court

did not abuse its discretion in determining the value of the marital

home. “[V]aluation [of marital property] is an exercise properly

within the fact-finding power of the trial courts, guided by expert

testimony” (Burns v Burns, 84 NY2d 369, 375). “ ‘Supreme Court has

broad discretion in crediting the testimony of an expert witness’ in

determining value” (Walasek v Walasek, 243 AD2d 851, 852-853), and the

court properly exercised its discretion when it credited the testimony

of defendant’s expert concerning the estimated costs of making

necessary repairs to the marital home.

We agree with plaintiff, however, that the court erred in failing

to direct defendant to obtain a life insurance policy to secure his

obligation for child support and his pro rata share of the children’s

private school tuition (see Domestic Relations Law § 236 [B] [8] [a];

Corless v Corless, 18 AD3d 493, 494). We therefore conclude that

defendant is obligated to obtain a life insurance policy listing

plaintiff as the beneficiary in the amount of $500,000 and to maintain

that policy until the youngest child reaches the age of majority (see

generally Corless, 18 AD3d at 494), and we modify the judgment

accordingly. We have reviewed plaintiff’s remaining contentions and

conclude that they are without merit.

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court