State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 26, 2015 519224 

________________________________

JEANNE MURPHY,

AppellantRespondent,

v MEMORANDUM AND ORDER

JAMES MURPHY,

RespondentAppellant.

________________________________

Calendar Date: January 16, 2015

Before: Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Friedman & Molinsek, PC, Delmar (Michael P. Friedman of

counsel), for appellant-respondent.

Murray S. Carr, Albany, for respondent-appellant.

__________

Lahtinen, J.P.

Cross appeals from a judgment of the Supreme Court

(Crowell, J.), entered November 20, 2013 in Saratoga County,

ordering, among other things, equitable distribution of the

parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter

the husband) were married in 1981 and have two emancipated

children (born in 1985 and 1990). The wife commenced this

divorce action in June 2012. During the pendency of the action,

the husband paid temporary maintenance to the wife of $450 per

month, $5,000 toward her counsel's fees, and reportedly

contributed $11,500 to the college costs of the younger child. A

trial was conducted on the issues of equitable distribution,
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maintenance and counsel fees. The primary marital assets

included each party's government pension (the husband's in pay

status and the wife's fully vested), a home with an agreed value

of $190,000 (encumbered by a home equity loan of $9,588 as well

as back taxes of $15,485), and investment assets of about

$203,000.

Supreme Court's findings and conclusions included, among

other things, that each party was 58 years old and in relatively

good health. The husband had retired from a state job in 2009,

received a state pension of $64,199 per year and currently had a

job paying $30,000 per year. The wife continued as a public

school teacher with over 30 years of experience, earned $79,000

during the 2012-2013 school year, was due to earn $82,000 the

next school year, and she could retire with a teacher's pension

of about $60,600 per year (which will increase as she continues

teaching). Since each party had earned during the marriage

relatively equivalent government pensions, the court directed

that each remain the sole owner of his/her pension. 

Each party had accounts and investment assets in his/her

own name, and the court directed each to keep his/her own, with

the wife's valued at $110,583 and the husband's at $92,653. The

court made no adjustment for the discrepancy because of wasteful

dissipation of assets by the husband, who secretly rented an

apartment for his private use for a couple of years near the end

of the marriage. The wife received the marital residence upon

paying half the value (with a downward adjustment for the

husband's one-half obligation on due taxes) and the husband was

directed to pay off the home equity loan.

After considering the relevant statutory factors, Supreme

Court denied the wife's request for maintenance. The court

further concluded that an award of counsel fees beyond the $5,000

already provided by the husband to the wife was unwarranted. 

Both parties appealed, but the husband has withdrawn his cross

appeal leaving only the arguments of the wife.

The wife contends that she is entitled to a Majauskas share

of the pension payments received by the husband during the time

between commencement of this action and Supreme Court's
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distribution of the marital property. We are unpersuaded. The

trial court has "substantial discretion in fashioning an award of

equitable distribution" (Lurie v Lurie, 94 AD3d 1376, 1378

[2012]). "Although pension rights earned during a marriage and

prior to the commencement of a matrimonial action are marital

property subject to equitable distribution, the distribution of

the asset is based upon considerations of fairness and the

respective situations of the parties" (Redgrave v Redgrave, 13

AD3d 1015, 1016 [2004] [internal quotation marks and citations

omitted]). Here, in light of all the circumstances surrounding

the division of the parties' property, the similarity of their

age, health and income, and particularly noting the similar

amounts of the government pensions to which each is entitled, the

court did not abuse its discretion in determining that each

should simply keep his/her own pension (see Alwell v Alwell, 98

AD2d 549, 553 [1984]; cf. Butler v Butler, 256 AD2d 1041, 1045

[1998], lv denied 93 NY2d 805 [1999]). Having determined that

the wife would not be awarded part of the husband's pension, it

was not error for the court not to make an award for that part of

the pension received while the action was pending. Moreover,

during such time, the wife received a temporary maintenance

payment that took into account the pension portion of the

husband's income. 

The wife's assertion that the husband should be required to

purchase life insurance designating her as beneficiary because he

elected the single life allowance for retirement was not

preserved for review. In any event, the assertion lacks merit

under the circumstances of this case. The wife has comparable

earnings and can secure a similar pension (also with a single

life allowance) as the husband (see Bellizzi v Bellizzi, 107 AD3d

1361, 1364 [2013]; Murray v Murray, 101 AD3d 1320, 1325 [2012],

lv dismissed 20 NY3d 1085 [2013]). 

The remaining arguments regarding the distribution of the

marital assets are without merit. "'[T]here is no requirement

that the distribution of each item of marital property be on an

equal or 50-50 basis'" (Quinn v Quinn, 61 AD3d 1067, 1069 [2009],

quoting Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985];

accord Vertucci v Vertucci, 103 AD3d 999, 1001 [2013]). The

distribution made by Supreme Court was well within its
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discretion. Further, Supreme Court did not abuse its discretion

and we discern no reason to disturb its determination, after

consideration of the pertinent statutory factors, not to award

maintenance to the wife (see e.g. Roberto v Roberto, 90 AD3d

1373, 1376 [2011]; Zwickel v Szajer, 45 AD3d 1222, 1223 [2007])

or its denial of additional counsel fees (see e.g. Soles v Soles,

41 AD3d 904, 908 [2007]).

Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court