                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    520091
________________________________

GREGORY P. GIFFORD,
                      Appellant-
                      Respondent,
     v                                       MEMORANDUM AND ORDER

HOLLY J. GIFFORD,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:   September 11, 2015

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

                              __________


      Wardlaw Associates, PC, Saratoga Springs (Donna E. Wardlaw
of counsel), for appellant-respondent.

      Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.
Rutkey of counsel), for respondent-appellant.

                              __________


Lynch, J.

      Cross appeal from a judgment of the Supreme Court (Reilly,
J.), entered February 6, 2014 in Schenectady County, ordering,
among other things, maintenance to defendant, upon a decision of
the court.

      Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) were married in 1986 and have three
emancipated children. The husband is a self-employed
geotechnical engineer who owns Gifford Engineering, LLC
(hereinafter the company). The wife is a college graduate,
decorator and artist who was primarily a homemaker and was
employed only intermittently during the marriage. This action
                              -2-                520091

was commenced in January 2012. At the commencement of the trial,
the parties entered into a stipulation on the record settling all
issues of equitable distribution. A bench trial proceeded on the
issue of maintenance and corresponding counsel fees arising out
of the trial. Supreme Court granted the husband a judgment of
divorce, which incorporated the equitable distribution
settlement, and awarded the wife nondurational maintenance of
$6,000 per month from January 1, 2014 through January 31, 2020,
$3,000 per month from February 1, 2020 through June 1, 2022, and
$800 per month thereafter, terminating upon either party's death
or the wife's remarriage (see Domestic Relations Law § 236 [B]
[6] [c]). Supreme Court also denied the wife's request for
counsel fees. The husband appeals and the wife cross-appeals.

      The husband contends that Supreme Court erred in utilizing
his total average annual income of $332,431 for purposes of
calculating a maintenance award, without making an adjustment for
the distributive award of the company. We agree. As part of the
stipulation, the parties agreed that the company was a marital
asset for which the wife received a distributive award of
$210,000. That award was based on a joint appraisal prepared by
Edward Selig, a certified public accountant, who valued the
business as of December 31, 2011 at $448,000, which report was
received in evidence by stipulation.1 A review of the report
confirms that the valuation was based on the husband's
capitalized projected earnings, utilizing annual base earnings of
$148,000. This valuation method triggers the rule against double
counting income, which provides that, "[o]nce a court converts a
specific stream of income into an asset, that income may no


    1
        The stipulation does not expressly state that the award
was based on 50% of the value of the business, but the record
indicates that it was essentially an equal distribution. While
the parties retained separate experts to assess the tax-impacted
value of the business, that reduced valuation issue was not
pursued in view of the settlement. The record shows that, in
addition to the payout, the wife received a Lexus automobile,
listed as an asset of the company with a value of approximately
$27,000. As a result, she effectively received an equal share of
the business.
                              -3-                520091

longer be calculated into the maintenance formula and payout"
(Grunfeld v Grunfeld, 94 NY2d 696, 705 [2000]; accord Mula v
Mula, 131 AD3d 1296, ___, 16 NYS3d 868, 871 [2015]). Further,
"[d]ouble counting may occur when marital property includes
intangible assets such as professional licenses or goodwill or
the value of a services business" (Keane v Keane, 8 NY3d 115, 122
[2006]). We agree with the husband that his solely owned
engineering company is a service business for purposes of the
double counting rule (see id.; Mula v Mula, 16 NYS3d at 871;
Greisman v Greisman, 98 AD3d 1079, 1081 [2012]; Noble v Noble, 78
AD3d 1386, 1389-1390 [2010]; Rodriguez v Rodriguez, 70 AD3d 799,
801 [2010]; V.M. v N.M., 43 Misc 3d 1204[A], 2014 NY Slip Op
50491[U], *13-14 [Sup Ct, Albany County 2014]). Since the wife
already received her equitable share of the company by
stipulation, an appropriate income adjustment must be made in
calculating the maintenance award (see Grunfeld v Grunfeld, 94
NY2d at 705-706). Given that the record here is sufficiently
developed, in the interest of judicial economy, we opt to make
the adjustment (see Smith v Smith, 8 AD3d 728, 731 [2004]) and
conclude that the husband's baseline earnings of $148,000 should
be utilized as the income available for maintenance purposes.

      We further conclude that Supreme Court did not abuse its
discretion in awarding the wife nondurational maintenance.
Supreme Court addressed the pertinent statutory factors as well
as the marital standard of living (see Domestic Relations Law §
236 [B] [6] [a]), with due recognition that the wife received a
sizeable equitable distribution award, overstated her expenses
and opted not to work outside of the home during most of the
marriage. While these factors militate against an extensive
award, the court also pointed out that, due to her age – 58 at
the time of trial – certain health limitations and absence from
the work force, the wife's employment prospects were limited.
The court also recognized that the husband was 61 at the time of
trial, had health limitations that impacted his ability to
perform demanding field work and had professed an intent to
retire at the age of 65. That being said, the husband's future
earning prospects far exceed the wife's, such that the limited
nondurational award in this long-term marriage was within the
court's discretion. Moreover, the court employed a tiered
approach, reducing the amount of the award based on the husband's
                              -4-                520091

projected retirement and eligibility for Social Security. Even
though the record indicates that the wife could be self-
sufficient, the additional maintenance award facilitates her
ability to maintain the comfortable predivorce standard of living
that the parties enjoyed (see Hartog v Hartog, 85 NY2d 36, 50-51
[1995]; Orioli v Orioli, 129 AD3d 1154, 1156 [2015]; Keil v Keil,
85 AD3d 1233, 1237-1238 [2011]; Bean v Bean, 53 AD3d 718, 723
[2008]). Factoring in the double counting adjustment, however,
we reduce the award to $2,700 per month from January 1, 2014
through January 31, 2020, $1,350 per month from February 1, 2020
through June 1, 2022, and $360 per month thereafter.

      Finally, we discern no abuse of discretion in Supreme
Court's denial of the wife's request for counsel fees. We are
mindful that the wife's status as the less monied spouse gives
rise to a rebuttable presumption that she is entitled to counsel
fees (see Domestic Relations Law § 237 [a]; Vantine v Vantine,
125 AD3d 1259, 1262 [2015]). Here, in light of the equitable
distribution, maintenance and substantial interim award of fees,
we find that the presumption in her favor was adequately
rebutted.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
                              -5-                  520091

      ORDERED that the judgment is modified, on the law, without
costs, by reducing defendant's maintenance award to $2,700 per
month from January 1, 2014 through January 31, 2020, $1,350 per
month from February 1, 2020 through June 1, 2022, and $360 per
month thereafter, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
