                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 13, 2014                    518077
________________________________

JOHN C. FISHER,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

CATHY ANN FISHER,
                    Appellant.
________________________________


Calendar Date:    September 9, 2014

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

                              __________


      Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for
appellant.

     Joseph A. Ermeti, Sidney, for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Burns, J.),
entered January 25, 2013 in Otsego County, ordering, among other
things, equitable distribution of the parties' marital property,
upon a decision of the court.

      Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) were married in 1966 and have two adult
children. The husband commenced this action for divorce in 2011,
at which time the parties' primary assets consisted of three
parcels of real property located within walking distance of one
another in the hamlet of East Worcester, Otsego County; one
parcel was improved by the parties' marital residence, one parcel
was improved by the husband's automotive repair garage and one
parcel was vacant. In addition to the enumerated parcels, the
parties also owned a number of motor vehicles, including a 1940
                              -2-                518077

Dodge Street Rod.

      Following a nonjury trial, at which the parties and various
appraisers appeared and testified, Supreme Court awarded the
marital residence (valued at approximately $87,000) and its
contents to the wife and awarded the repair shop (valued at
approximately $52,000) and its contents to the husband. To
account for this disparity, Supreme Court awarded the husband
several of the parties' motor vehicles, while the wife retained
her personal vehicle and certain shares of stock. Each party
also retained any bank accounts held in his or her own name, and
the cash value of the life insurance policies at issue – as well
as the husband's pension – were to be divided equally.1 Supreme
Court also ordered the husband to pay maintenance to the wife in
the amount of $500 per month for three years. This appeal by the
wife ensued.

      The wife initially contends that she is entitled to a
distributive award in the amount of $10,000, representing one
half of the alleged disparity between the respective bank
accounts that she and the husband held in their own names.
Although it is apparent from a review of the record that Supreme
Court endeavored to divide the parties' marital assets as evenly
as possible, the fact remains that equitable distribution does
not require equal distribution in all instances (see Lurie v
Lurie, 94 AD3d 1376, 1378 [2012]) and, in light of the remaining
assets received by the wife, we discern no need for the requested
distributive award.

      As for the wife's challenge to the duration of the
maintenance awarded to her, it is well settled that "the amount
and duration of [the] 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


    1
        The proceeds from any joint bank accounts also were to be
divided equally between the parties, as were the proceeds from
the court-ordered sale of the vacant lot and those motor vehicles
not otherwise expressly awarded to either the husband or the
wife.
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the marriage" (Halse v Halse, 93 AD3d 1003, 1005 [2012]; see
Domestic Relations Law § 236 [B] [6] [a]; Cornish v Eraca-
Cornish, 107 AD3d 1322, 1324 [2013]).2 At the time of trial, the
parties – each of whom were in their early 60s and in good health
– had been married for more than 40 years. Although the husband
had been the primary wage earner during the course of the
marriage, both parties were employed at the time of trial; the
wife, who performed gardening work for a local campground and
worked as a caretaker for an elderly woman, earned approximately
$27,000 per year in salary and Social Security benefits, and the
husband, who was a bus driver for a local school district, earned
approximately $40,000 per year. The record further reflects that
the parties enjoyed a modest standard of living during their
marriage and, as noted previously, Supreme Court otherwise
allocated the parties' marital assets in an equitable – and
nearly equal – fashion. That said, while Supreme Court awarded
the wife one half of the husband's pension, the husband has not
yet retired, and we deem it appropriate – in order to avoid a
potential gap in the wife's receipt of financial support – to
modify the duration of the award by providing that the wife shall
receive maintenance in the amount of $500 per month until such
time as the husband retires and the wife begins receiving her
portion of his pension benefits (cf. Settle v McCoy, 108 AD3d
810, 812 [2013]).



     2
        Although not raised by the parties, we note that Domestic
Relations Law § 236 (B) (6) (a) was amended in 2010 to add
additional factors to be considered by the trial court in
fashioning an award of postdivorce maintenance (see L 2010, ch
371, § 2). As this amendment applied to actions commenced on or
after October 12, 2010 (see L 2010, ch 371, § 6), and given that
this action was commenced in April 2011, Supreme Court should
have considered the expanded list of statutory factors in
arriving at a maintenance award. That said, remittal is not
required, as "this Court's authority is as broad as Supreme
Court's in resolving questions of maintenance" (McCaffrey v
McCaffrey, 107 AD3d 1106, 1108 [2013] [internal quotation marks
and citations omitted]; cf. Ingersoll v Ingersoll, 86 AD3d 684,
685 [2011]).
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      With respect to the allocation of the husband's pension
rights, a pension that qualifies as marital property may be
distributed either in a lump sum or future periodic payments (see
Shapiro v Shapiro, 91 AD3d 1094, 1095 [2012]). To that end,
where the titled spouse lacks the present ability to pay for the
equitable distribution of his or her pension, a deferred
distribution is entirely appropriate (see Chambers v Chambers,
259 AD2d 807, 808 [1999]). Here, the wife does not quarrel with
Supreme Court's decision to award her 50% of the husband's
pension but, rather, faults the court for failing to direct that
the husband select a particular payout option. Inasmuch as no
request for such a directive was made by the wife – either during
the course of the trial or in her posttrial submissions – this
issue is not properly before us (see Nalbandian v Nalbandian, 135
AD2d 621, 623 [1987], lv denied 71 NY2d 802 [1988]). The wife's
remaining contentions, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     Lahtinen, J.P., Rose and Clark, JJ., concur.


Lynch, J. (concurring in part and dissenting in part).

      I join in the majority opinion, except with respect to
Supreme Court's failure to address the selection of a particular
payment option for the pension of plaintiff (hereinafter the
husband). A review of the record shows that the available
options were received in evidence, but neither party addressed
the selection of an option. As it currently stands, the husband
could select the "single life allowance" option, which yields the
highest payment but will stop when the husband dies. The
reasoned concern of defendant (hereinafter the wife) is that if
her husband predeceases her, she will lose her share of the
pension benefit. This is not a situation where the parties
addressed the selection of an option in a separation agreement,
or expressly agreed to have the court make a selection (compare
Mager v Mager, 267 AD2d 807, 807 [1999]). Nonetheless, the
complete distribution of this marital asset was before the court,
and simply providing for a 50% distribution to each party was not
                              -5-                  518077

enough to account for the wife's share of this asset.1 In
reviewing the available options, it is my view that the "Pop-
Up/Joint Allowance Half" would be appropriate here. Under that
option, upon the husband's death the wife would continue to
receive 50% of the original monthly retirement allowance for
life; if the wife predeceased the husband, the husband's benefit
would be increased to the single life allowance (compare McVeigh
v Curry, 99 AD3d 974, 976 [2012]; Mager v Mager, 267 AD2d at
808). Although this selection yields a reduced lifetime benefit
for the parties, on balance this option would secure each party's
equitable interest. Pending the husband's retirement, the
husband should also be required to maintain the wife as the
designated beneficiary for any death benefit in order to
adequately protect the award to her.



      ORDERED that the judgment is modified, on the facts,
without costs, by reversing so much thereof as awarded plaintiff
maintenance in the amount of $500 per month for three years;
plaintiff is awarded maintenance in the amount of $500 per month
until such time as defendant retires and plaintiff begins
receiving her portion of defendant's pension benefits; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court


    1
        Although Supreme Court did not specify that the
distribution would be in accordance with the formula enunciated
in Majauskas v Majauskas (61 NY2d 481 [1989]), it is evident that
this was the intent, and the pension should be distributed in
accord with the Majauskas formula.
