                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    519150
________________________________

MAREN E. VANTINE,
                     Appellant-
                     Respondent,
     v
                                             MEMORANDUM AND ORDER
DAVID C. VANTINE,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:   January 8, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                              __________


     Brian Michael Miga, Utica, for appellant-respondent.

      Melvin & Melvin, PLLC, Syracuse (Frank J. Vavonese of
counsel), for respondent-appellant.

     Karin Morris, Syracuse, attorney for the child.

                              __________


Lahtinen, J.

      Cross appeals from a judgment of the Supreme Court
(McDermott, J.), entered November 5, 2013 in Madison 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 June 2003, had one child together
(born in 2004), and the wife commenced this divorce action in
December 2010. In May 2011, the husband was directed to pay
temporary maintenance of $5,769.23 biweekly and child support of
$850 biweekly. Prior to trial, the parties agreed to joint legal
                              -2-                519150

custody of the child, primary residence with the wife and liberal
parenting time for the husband. A trial ensued as to equitable
distribution, maintenance and child support. Considerable
conflicting proof was presented as to the values of two
businesses, the husband's 95% interest in the separate property
Vantine Imaging, LLC and his 100% interest in the marital
property Greek Composites, LLC. Supreme Court awarded the wife
$82,525 for Vantine Imaging, representing 2.5% of the increase in
value of the husband's share of the company during the marriage,
and $150,000 for Greek Composites, representing 30% of that
company's value as of the commencement of the action. The
husband was directed to pay $2,700 per month in child support,
100% of health insurance premiums and related medical costs for
the child, and 100% of the child's college tuition and associated
expenses. The wife was awarded $6,700 a month in maintenance for
a period of three years. Her application for counsel fees and
the cost of expert services was denied. The wife appeals and the
husband cross-appeals.

      The equitable distribution award was within Supreme Court's
discretion. The wife contends that she should have received a
larger percentage of the increase in value during the marriage of
the husband's 95% interest in Vantine Imaging. That company was
formed in 2000, prior to the marriage, and it essentially
continued a photography business that had been in the husband's
family for several generations. It was undisputedly separate
property (see Domestic Relations Law § 236 [B] [1] [d] [1]).
"[I]n order for appreciation in the value of this asset to be
deemed marital property subject to equitable distribution, the
[wife] was required to demonstrate the manner in which her
contributions resulted in the increase in value and the amount of
the increase which was attributable to her efforts" (Turco v
Turco, 117 AD3d 719, 721 [2014] [internal quotation marks,
brackets and citations omitted]; see Price v Price, 69 NY2d 8,
17-18 [1986]; Van Dyke v Van Dyke, 273 AD2d 589, 592 [2000]).

      Supreme Court credited the husband's expert and found that
the value of his interest in Vantine Imaging had appreciated by
$3,301,000 during the marriage. However, the court determined
that the husband had a minor role in such appreciation because
the company was run by a management team and the husband had
                              -3-                519150

limited involvement in the company's business as he instead
pursued his motorcycle racing hobby. The court further found
that the wife had made minimal contributions to the husband's
limited involvement in the company. These findings involved
credibility determinations by Supreme Court and, deferring to
those determinations (see Carlson-Subik v Subik, 257 AD2d 859,
862 [1999]), the record supports Supreme Court's finding that the
wife failed to prove that she was entitled to a larger award,
under the circumstances, for the appreciation of the husband's
separate property (see Ellis v Ellis, 235 AD2d 1002, 1004
[1997]).

      With respect to the parties' remaining marital property,
"[i]t is well established that equitable distribution of marital
property does not necessarily mean equal, and Supreme Court has
substantial discretion in fashioning an award of equitable
distribution" (Lurie v Lurie, 94 AD3d 1376, 1378 [2012]; see
Quinn v Quinn, 61 AD3d 1067, 1069 [2009]). Supreme Court set
forth adequate reasons for its distribution of the property and
we are unpersuaded that it abused its discretion.

      The wife argues that the award of maintenance was
insufficient. "[T]he purpose of maintenance is to provide
temporary support while the recipient develops the skills and
experience necessary to become self-sufficient" (Armstrong v
Armstrong, 72 AD3d 1409, 1415 [2010] [internal quotation marks
and citations omitted]). "The amount and duration of a spousal
maintenance award is within the sound discretion of Supreme
Court, after consideration of the enumerated statutory factors,
as well as the marital standard of living" (Roberto v Roberto, 90
AD3d 1373, 1376 [2011] [citations omitted]). Supreme Court
detailed the reasons for its award. Among other things, the
court discussed the fact that the wife was 44 years old, in good
health, had a Bachelor's degree in German and had worked as a
flight attendant. With two semesters of college, she could
obtain a teaching certificate, which she indicated an interest in
pursuing. Various potential employment opportunities for the
wife were apparently available within commuting range. The court
characterized the parties' lifestyle during the short marriage as
comfortable and determined that they had lived well within their
means. The wife's contention that she could not return to work
                               -4-                519150

because she needed to be available for the child was found
unconvincing. The fact that she had an infant at home from a
relationship with another man after the parties separated in 2008
was noted. The impact of, among other things, the distributive
awards was considered. Although not every statutory factor was
analyzed, nonetheless the court "provide[d] a reasoned analysis
for its decision . . ., including a discussion of the factors
upon which it relied" (McAteer v McAteer, 294 AD2d 783, 784
[2002] [internal quotation marks and citation omitted]), and the
award was within the court's discretion.

      We agree with the wife and attorney for the child that the
amount of child support should be increased. The husband's
adjusted gross income in 2011 was $902,2771 and the parties do
not dispute Supreme Court's calculation that his pro rata share
of basic child support was 91.8%, resulting in an obligation of
$21,224 ($1,769 per month) based on the initial $136,000 of
combined parental income for one child (17%) (see Domestic
Relations Law § 240 [1-b] [b] [3] [i], [c] [2]-[3]). With regard
to the income exceeding $136,000, "the court must determine the
parties' child support obligations for that excess amount by
considering the so-called 'paragraph (f)' factors" (Sadaghiani v
Ghayoori, 97 AD3d 1013, 1013-1014 [2012]; see Domestic Relations
Law § 240 [1-b] [c] [3]; [f]). Although Supreme Court increased
child support to $2,700 per month, we find that amount
inadequate. The record reflects, among other things, that the
child has special needs and emotional health issues that consume
considerable amounts of the wife's time and require additional
resources to adequately address, the husband's income and
financial resources far exceed those of the wife, the child
participated in various trips, recreational and instructive
activities, enjoying a comfortable standard of living, and an
additional amount is necessary to keep in place the standard of
living that the child would have enjoyed had the marriage
continued. Under all the facts and circumstances, the husband's
child support obligation should be $5,000 per month, which
reflects the addition of about 5% of the husband's income over


     1
        His income was reportedly more than 50% higher in 2009
and 2010 than in 2011.
                              -5-                519150

$136,000 (see generally Quinn v Quinn, 61 AD3d at 1072; Bean v
Bean, 53 AD3d 718, 725 [2008]).

      The wife should have been awarded at least part of her
counsel fees and expert witness fees. For matrimonial actions
such as this one commenced on or after October 12, 2010, there is
now a statutory "rebuttable presumption that counsel fees shall
be awarded to the less monied spouse" (Domestic Relations Law §
237 [a]; see L 2010, ch 329, §§ 1, 3; ch 415). The wife is
clearly the less monied spouse by a significant margin. Although
Supreme Court noted that the wife received generous temporary
maintenance, we are unpersuaded under the circumstances that such
fact adequately rebuts the presumption that the husband should
pay at least a portion of the wife's fees (see Suppa v Suppa, 112
AD3d 1327, 1329 [2013]; Francis v Francis, 111 AD3d 454, 455
[2013]; Leonard v Leonard, 109 AD3d 126, 129-130 [2013]; see also
Armstrong v Armstrong, 72 AD3d at 1416). The matter is remitted
for a hearing to determine an appropriate award of such fees.

      Turning to the husband's cross appeal, he argues that he
was entitled to a credit on the equitable distribution for
payment of excess temporary maintenance. Although such a credit
may be granted, it is not mandatory, and we find no abuse of
discretion (see Fox v Fox, 306 AD2d 583, 583-584 [2003], appeal
dismissed 1 NY3d 622 [2004]; see also Johnson v Chapin, 12 NY3d
461, 466 [2009]). The remaining arguments, to the extent
preserved, have been considered and are unavailing.

     Peters, P.J., McCarthy and Lynch, JJ., concur.
                              -6-                  519150

      ORDERED that the judgment is modified, on the law and the
facts, without costs, by increasing defendant's child support
obligation to $5,000 per month; matter remitted to the Supreme
Court for a hearing to determine an appropriate award to
plaintiff of counsel fees and expert witness fees; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
