SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

469 

CA 11-00085 

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.

 

 

BRENDA L. D’AMBRA, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

RICHARD T. D’AMBRA, DEFENDANT-RESPONDENT. 

----------------------------------------- 

DEAN J. FERO, ATTORNEY FOR THE CHILDREN, 

APPELLANT. 

(APPEAL NO. 2.) 

 

DAVIDSON FINK, LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

DEAN J. FERO, ATTORNEY FOR THE CHILDREN, ROCHESTER, APPELLANT PRO SE. 

SAMUEL A. DISPENZA, JR., EAST ROCHESTER (TERRENCE G. BARKER OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeals from a judgment of the Supreme Court, Monroe County (Elma

A. Bellini, J.), entered December 27, 2010 in a divorce action. The

judgment, among other things, dissolved the marriage between the

parties. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating that part equitably

distributing plaintiff’s M&T savings account as well as those parts

precluding plaintiff from sharing in defendant’s early retirement

benefits or enhanced pension payments, if any, and as modified the

judgment is affirmed without costs. 

Memorandum: In this matrimonial action, plaintiff wife and the

Attorney for the Children (AFC) appeal from a judgment of divorce that

“incorporated and merged” an amended decision and order issued by

Supreme Court following a trial on issues relating to custody of the

parties’ two children and equitable distribution. With respect to

custody, the court awarded the parties joint custody with primary

physical residence to the wife and visitation to defendant husband on

alternate weekends until Monday morning, every Wednesday from 4:00

P.M. to 7:30 P.M., and Sunday afternoons from 3:00 P.M. to 7:00 P.M. on

the weekends during which the husband does not otherwise have

visitation. The court further determined that, if the husband

obtained a “suitable residence,” i.e., an appropriately sized and

equipped apartment within five miles of the wife’s residence, within

six months of its amended decision and order, the residency schedule
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CA 11-00085 

would be adjusted to afford the parties equal time with the children. 

Finally, with respect to custody, the court ordered that the parent

whose residency period is beginning shall be responsible for picking

up the children from the other parent’s residence. 

The wife challenges the court’s residency schedule on several

grounds. She initially contends that the court erred in determining

that the husband shall automatically be entitled to equal time with

the children if he obtained a “suitable residence” within six months

of the amended decision and order. That contention is moot, however,

inasmuch as the husband did not obtain a “suitable residence” within

the requisite six months, and indeed still has not done so. The wife

further contends, and the AFC agrees, that the court erred in awarding

the father visitation on Sunday afternoons with the children on the

weekends that he does not have residency. According to the wife, the

schedule deprives her of quality time with the children because she

never has the children for an entire weekend. We reject that

contention. Because the wife is permanently disabled and does not

work, the court’s residency schedule affords her ample quality time

with the children (see generally Chamberlain v Chamberlain, 24 AD3d

589, 592-593). She has the children every day after school and most

week nights, as well as on alternate weekends until Sunday afternoon. 

“It is well settled that visitation issues are determined based on the

best interests of the children . . . and that trial courts have

‘broad discretion in fashioning a visitation schedule’ ” (Veronica S.

v Philip R.S., 70 AD3d 1459, 1459). Affording deference to the

court’s determination and its “first-hand assessment” of the parties

(Matter of Thayer v Thayer, 67 AD3d 1358, 1359), we cannot conclude

that the court erred in awarding visitation to the husband on

alternate Sunday afternoons.

The wife further challenges the custody provisions of the amended

decision and order insofar as it requires her to transport the

children from the husband’s residence to school on alternate Monday

mornings. It appears from the wife’s brief on appeal, however, that

her challenge may be moot. According to the wife’s brief, the court

clarified its amended decision and order after it was rendered to make

clear that the transportation provision did not apply to Monday

mornings, and the husband has agreed to provide such transportation. 

In any event, we conclude that, because the record demonstrates that

the wife is capable of operating a motor vehicle without difficulty

despite her disability, the court did not err in requiring her to

share equally in the transportation burden associated with the

residency schedule on alternate Monday mornings. In addition, we

reject the AFC’s contention that the court should have required the

husband to provide all of the transportation for visitation and

residency. We also reject the AFC’s contentions that the court erred

in awarding residency of the children to the husband on alternate

school breaks and holidays, and in failing to direct the parties to

attend the Assisting Children through Transition program (see

generally Veronica S., 70 AD3d at 1459). 

With respect to equitable distribution, there is no merit to the

wife’s contention that the court erred in granting one dependency
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CA 11-00085 

exemption to each party while allowing the husband to purchase in any

given year the wife’s exemption for the amount of tax savings the wife

would have realized were she to claim the child on her tax return. We

note at the outset that the wife does not appear to be aggrieved

thereby. According to the uncontradicted testimony of the husband’s

tax expert, the wife will derive no benefit from the dependency

exemption due to her limited income, which consists solely of

disability benefits. In any event, “[n]othing in the language of the

federal tax law limits the discretion of a state court to allocate the

dependency exemption” (Agnello v Payne, 26 AD3d 837, lv denied 7 NY3d

707), and the court therefore could have awarded both exemptions to

the husband. 

We agree with the wife, however, that the court erred in awarding

the husband one half of the funds in the wife’s M&T savings account as

of the date of commencement of the action, and we therefore modify the

judgment accordingly. That account was in the wife’s name only, and

she established at trial that the funds therein came exclusively from

her disability payments. Domestic Relations Law § 236 (B) (1) (d) (2)

provides that “compensation for personal injuries” is separate

property not subject to equitable distribution, and disability

payments constitute compensation for personal injuries (see Miceli v

Miceli, 78 AD3d 1023, 1025; Masella v Masella, 67 AD3d 749, 750;

Solomon v Solomon, 206 AD2d 971). 

We conclude that the court erred in determining that the wife

shall not share in any early retirement benefits or enhanced pension

payments, if any, that the husband may receive in the future. We thus

further modify the judgment accordingly. “Vested rights in a

noncontributory pension plan are marital property to the extent that

they were acquired between the date of the marriage and the

commencement of a matrimonial action, even though the rights are

unmatured at the time the action is begun” (Majauskas v Majauskas, 61

NY2d 481, 485-486). Although Social Security bridge payments and

severance payments generally are not subject to distribution under

Majauskas, early retirement or pension benefits of the type at issue

in this case have been treated differently (see Olivo v Olivo, 82 NY2d

202, 207-209). 

We reject the wife’s contention that the court erred in awarding

her only a 15% share of the husband’s business, given that the wife

made only indirect contributions to that business (see e.g. Peritore v

Peritore, 66 AD3d 750, 753; Hiatt v Tremper-Hiatt, 6 AD3d 1014, 1016). 

Finally, we conclude that the “ ‘equities of the case and the

financial circumstances of the parties’ ” support the court’s refusal

to award attorney’s fees to plaintiff (Matter of William T.M. v Lisa

A.P., 39 AD3d 1172, 1173). 

Entered: April 27, 2012 Frances E. Cafarell

Clerk of the Court