                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 2, 2016                       521057
________________________________

JENNIFER L. ROMA,
                     Respondent-
                     Appellant,
     v                                       MEMORANDUM AND ORDER

RENATO ROMA,
                    Appellant-
                    Respondent.
________________________________


Calendar Date:   April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                              __________


      Levene Gouldin & Thompson, LLP, Vestal (Philip C. Johnson
of counsel), for appellant-respondent.

     Robert C. Kilmer, Binghamton, for respondent-appellant.

     Allen E. Stone Jr., Vestal, attorney for the child.

                              __________


Lahtinen, J.

      Cross appeal from an amended judgment of the Supreme Court
(Pines, J.), entered July 21, 2014 in Broome 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) married in 1991 and have two children (born in 1994
and 2000). The wife commenced this action in January 2013 and,
after the parties stipulated to a ground for divorce, a nonjury
trial ensued. The trial evidence revealed that, during most of
their marriage, the wife was the primary wage earner, and her
                              -2-                521057

gross income as a program manager in 2012 was $105,437, whereas
the husband earned $35,382 that year in the seasonal landscaping
business that he has operated for many years. Supreme Court
rendered a written decision in which, among other things, it:
granted the parties joint legal custody with the wife having
primary physical custody of the child still living at home;
distributed the marital property – including the value of the
marital residence, the wife's defined pension plan, her 401K
account and each party's individual retirement accounts
(hereinafter IRAs); directed the wife to pay maintenance in the
amount of $866 per month for two years; ordered the husband to
pay weekly child support of $225 plus 35% of unreimbursed medical
costs; and denied the husband's request for counsel fees. An
amended judgment was thereafter entered. The husband appeals and
the wife cross-appeals.

      Both parties contest aspects of the equitable distribution
award. "It 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]
[citation omitted]; see Musacchio v Musacchio, 107 AD3d 1326,
1330 [2013]; Vertucci v Vertucci, 103 AD3d 999, 1001 [2013]).
The marital residence had a fair market value of $215,000 with a
net equity of $131,000. Each party sought primary custody of the
minor child and also the right to remain in the marital residence
with the child (see Albertalli v Albertalli, 124 AD3d 941, 943
[2015]). The wife prevailed on these issues and, accordingly,
Supreme Court included among the options for compensating the
husband for his equity share of the marital residence that the
wife pay him his equity share of $65,000 when the youngest child
turns 18 in mid-2018.1 The husband contends that he should
receive interest (at the statutory rate) on the deferred payment.
The wife complains that the husband should have an offset for a
$15,000 to $20,000 portion of a loan, which is solely in her
name. Inasmuch as these amounts, although not exact, nonetheless


    1
        The husband assumes that the wife will use this option
because she was allowed to choose from three options and this one
was the most financially advantageous to her.
                              -3-                521057

substantially offset, we find no abuse of discretion in Supreme
Court's resolution of these issues.

      The decision to divide equally the wife's 401K and IRA and
the husband's smaller IRA was within Supreme Court's discretion
in light of, among other things, the length of the marriage and
proof that these assets were earned during the marriage (see e.g.
Soles v Soles, 41 AD3d 904, 907 [2007]; Harrington v Harrington,
300 AD2d 861, 864 [2002]). Both parties agree that, with respect
to the wife's defined pension plan at her current employer,
Lockheed Martin, Supreme Court failed to determine each party's
proportionate share. It is insufficient to simply state, as
Supreme Court did, that the husband is entitled to share in the
plan pursuant to the Majauskas formula (see Quarty v Quarty, 96
AD3d 1274, 1281 [2012]; Parks v Parks, 159 AD2d 841, 842 [1990]).
The court must determine the husband's equitable share of the
future pension payments, which is then applied to the portion of
those payments that are calculated to be marital property (see
Chambers v Chambers, 259 AD2d 807, 807-808 [1999]; Church v
Church, 169 AD2d 851, 851-852 [1991]; see generally David J.
Lansner & Judith M. Reichler, New York Civil Practice:
Matrimonial Actions § 45.07 [3] [a]). We deem it appropriate
under the circumstances to remit to Supreme Court to make the
necessary determinations regarding the wife's defined pension
with Lockheed Martin.

      Next, we address the award of durational maintenance to the
husband, which the husband contends was inadequate and the wife
asserts was excessive. "[T]he amount and duration of maintenance
awarded is a matter committed to the discretion of the trial
court, after due consideration of the statutory factors and the
parties' standard of living during the marriage" (Halse v Halse,
93 AD3d 1003, 1005 [2012]). Both parties were in good health.
The wife had a steady job and substantially more income than the
husband. They had been married over 21 years and had a
relatively comfortable lifestyle. Supreme Court discussed the
seasonal nature of the husband's income from his business, his
looming personal and business relocation costs and his need for
sufficient time to either expand his business or seek other
sources of income to supplement his seasonal income. We are
unpersuaded that the award to the husband of $866 per month for
                              -4-                521057

two years was an abuse of discretion.

      The child support obligation must be reversed. Supreme
Court "failed to explain its application of the 'precisely
articulated, three-step method for determining child support'
pursuant to the Child Support Standards Act . . . [and] [i]t is
impossible to determine from the decision the manner in which the
court calculated [the husband's] child support obligation or the
parties' pro rata shares of both the basic child support
obligation and the future reasonable health care expenses of the
child[ren] not covered by insurance" (Hartnett v Hartnett, 281
AD2d 900, 901 [2001], quoting Matter of Cassano v Cassano, 85
NY2d 649, 652 [1995] [internal citation omitted]). The court set
forth an "adjusted gross income" of $133,720.05, but no
explanation is offered as to how the court arrived at this
number, it is not clear from the various amounts in the record
whether this amount complies with "income" for support purposes
as defined by the statute (see Domestic Relations Law § 240 [1-b]
[b] [5]) and neither party set forth a calculation arriving at
such number. The pro rata share of 65% to the wife and 35% to
the husband is also unexplained and appears to be based on
imputing income to the husband, but the court made no mention of
imputing income in its decision. The matter must be remitted for
clarification and recalculated; however, the current child
support (including the percentage for unreimbursed medical costs)
shall remain in effect pending recalculation.2

      Supreme Court's denial of the husband's request for counsel
fees is reversed. The court failed to consider the rebuttal
presumption statutorily bestowed upon the less monied spouse (see
Domestic Relations Law § 237 [a]), and it is not otherwise clear
from the record whether the presumption was rebutted (cf. Gifford
v Gifford, 132 AD3d 1123, 1126 [2015]). Upon remittal, the court
should address whether the presumption is overcome and, if not,
determine an appropriate award of counsel fees.



    2
        We note that circumstances have changed that may be
relevant, including the current age of the oldest child (see
Domestic Relations Law § 240 [1-b] [b] [2]).
                              -5-                  521057

     The remaining arguments are academic or unavailing.

     Peters, P.J., Garry, Clark and Mulvey, JJ., concur.



      ORDERED that the amended judgment is modified, on the law,
without costs, by reversing so much thereof as (1) established
defendant's rights regarding plaintiff's defined pension plan
through Lockheed Martin, (2) awarded child support and (3) denied
defendant's request for counsel fees; matter remitted to the
Supreme Court for further proceedings not inconsistent with this
Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
