                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     521119
________________________________

JOHN VALITUTTO,
                     Respondent,
     v
                                             MEMORANDUM AND ORDER
DIANA VALITUTTO,
                    Appellant.
________________________________


Calendar Date:    February 9, 2016

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

                              __________


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

     Cynthia Feathers, Glens Falls, for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (Crowell, J.),
entered December 23, 2014 in Saratoga 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 1982 and have two
daughters, both of whom were emancipated at the time of the
commencement of this divorce action. The parties physically
separated in July 2009 when the husband left the marital
residence. In April 2012, the husband commenced this matrimonial
action, asserting an irretrievable breakdown of the marriage (see
Domestic Relations Law § 170 [7]). After a bench trial, Supreme
Court issued an order in October 2014, which was subsequently
amended twice, in October 2014 and November 2014, granting the
                              -2-                521119

parties a divorce and ordering the equitable distribution of
their marital property, which included, among other things, the
proceeds from the sale of the marital residence (hereinafter the
Lake Ridge property), a rental property (hereinafter the
Wineberry property) and a portion of the husband's state pension.
In December 2014, a judgment of divorce was entered,
incorporating the terms of the November 2014 second amended
decision and order. The wife now appeals, and we affirm.

      Although the funds that the wife received as a settlement
to an employment discrimination lawsuit were initially separate
property (see Domestic Relations Law § 236 [B] [1] [d] [2]), they
presumptively became marital property once she placed them into a
joint account (see Albertalli v Albertalli, 124 AD3d 941, 942
[2015]). To rebut that presumption, the wife was required to
prove by clear and convincing evidence that the placement of the
funds in a joint account was for mere convenience (see Whitaker v
Case, 122 AD3d 1015, 1017 [2014]; Burnett v Burnett, 101 AD3d
1417, 1419 [2012]). The proof established that the funds from
that joint account were used for the parties' regular expenses
and included those funds used for the purchase of the Lake Ridge
property, which was jointly titled. Thereafter, the parties
refinanced that property and used the proceeds to purchase the
Wineberry property, which was also jointly titled. This proof
tended to show that the funds placed in the joint account became
increasingly untraceable, supporting a reasonable inference that
the wife did not intend to place the funds in the joint account
solely for convenience. Further, Supreme Court credited the
husband's testimony that he had never indicated that the funds
would remain separate property, and we decline to disturb that
credibility determination (see Vertucci v Vertucci, 103 AD3d 999,
1003 [2013]; Seidman v Seidman, 226 AD2d 1011, 1012 [1996]).
Accordingly, the wife failed to rebut the presumption that the
funds became marital property.

      We reject the wife's contention that Supreme Court erred in
adjusting her share of the husband's pension pursuant to
equitable distribution. Supreme Court has "substantial
discretion to fashion [equitable distribution] awards based on
the circumstances of each case," and its determination in this
regard "will not be disturbed absent an abuse of discretion or
                              -3-                521119

failure to consider the requisite statutory factors" (Williams v
Williams, 99 AD3d 1094, 1096 [2012]; accord Buchanan v Buchanan,
132 AD3d 1182, 1183 [2015]; see Domestic Relations Law § 236 [B]
[5] [d]). "'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'" (Arnone v Arnone, 36 AD3d
1170, 1172-1173 [2007], quoting Redgrave v Redgrave, 13 AD3d
1015, 1016 [2004]; see Majauskas v Majauskas, 61 NY2d 481,
485-486 [1984]).

      In distributing the parties' marital property, Supreme
Court granted the wife title to the Wineberry property, valued at
$196,000, which the parties owed free of mortgage or any other
encumbrances, whereas the husband received the proceeds of the
sale of the Lake Ridge property, $108,000 held in escrow.
Considering the distribution to this extent, the husband received
$88,000 less in assets than the wife. The only remaining
substantial marital asset was a portion of the husband's state
pension. Supreme Court correctly calculated that 78% of the
pension that the husband would receive if he retired in 2018 was
marital property.1 Supreme Court also correctly noted that the
Majauskas formula would have entitled the wife to a 39% share of
the husband's pension. The entirety of the husband's monthly
pension would be $6,250 a month, and Supreme Court reduced the
wife's share of that pension from 39% to 30%. Notably, the
husband's loss based on receiving the less valuable real
property-related asset accrues upon the entry of the judgment,
while the wife's loss based on her reduced share in the husband's
pension is delayed and then accrues over time, reducing the
present value of her loss. Considering the equitable
distribution in its entirety, we conclude that Supreme Court did


    1
        The wife incorrectly assumes that 100% of the pension is
marital property, failing to recognize that the husband's
contributions to his pension, after the filing of the matrimonial
action and until his eventual retirement, are his separate
property (see Valachovic v Valachovic, 9 AD3d 659, 559-660
[2004]).
                              -4-                521119

not abuse its discretion in fashioning an approximately equal
distribution of the marital assets (see Graepel v Graepel, 125
AD2d 447, 448-449 [1986]; see also Zacharek v Zacharek, 116 AD2d
1004, 1005 [1986]).

      Further, Supreme Court did not abuse its discretion by
awarding the wife maintenance of $1,500 per month to continue
until either the husband's retirement or, if he did not retire at
the age of 66, the wife's death or her remarriage or cohabitation
with another person. "[I]t 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 the
marriage'" (Fisher v Fisher, 122 AD3d 1032, 1033 [2014], quoting
Halse v Halse, 93 AD3d 1003, 1005 [2012]; see Orioli v Orioli,
129 AD3d 1154, 1155-1156 [2015]).

      While the wife stressed that she assisted the husband in
obtaining his Master's degree, he too helped her obtain a
Master's degree. Both parties were, at various times, the
primary caretakers for their children when necessary to advance
each other's careers. Although the wife had no current income,
she had a Series 7 brokerage license and had previously worked at
a major brokerage firm and also had obtained a Master's degree
and certification in psychology. The husband appeared in good
health at trial and earned approximately $110,000 per year, but
he housed and provided financial assistance to the parties' adult
daughter, who suffers from disabilities. The husband had
voluntarily paid maintenance to the wife for over a year, and he
had paid the mortgage and taxes on the marital real property
during the pendency of this action. During the same time, he
made loan and insurance payments for the vehicle that the wife
drove and provided health insurance to the wife and both of their
daughters. Accordingly, considering this evidence and the fact
that Supreme Court considered the appropriate statutory factors,
Supreme Court did not abuse its discretion in determining either
the duration or the amount of maintenance payable to the wife
(see Settle v McCoy, 108 AD3d 810, 811-812 [2013]; compare
McAuliffe v McAuliffe, 70 AD3d 1129, 1134-1135 [2010]; Ndulo v
Ndulo, 66 AD3d 1263, 1264-1265 [2009]).
                              -5-                  521119

      Finally, we conclude that Supreme Court did not abuse its
discretion in denying the wife counsel fees. Mindful of the
presumption in favor of her receipt of counsel fees as the less
monied spouse (see Domestic Relations Law § 237 [a]; Gifford v
Gifford, 132 AD3d 1123, 1126 [2015]), we conclude that the
husband adequately rebutted that presumption. The record reveals
that the wife maintained unreasonable stances, veering into
personal and irrelevant attacks aimed at the husband and his
counsel at times, that unnecessarily prolonged the litigation
(see Johnson v Chapin, 12 NY3d 461, 467 [2009]). Further, the
record reveals that, for what appears to have been a potentially
simple legal matter, the wife had already charged $10,000 in
legal fees to the husband's credit card, as well as asking for
and receiving another $5,000 from him which she alleged that she
needed for legal fees (see Armstrong v Armstrong, 72 AD3d 1409,
1416 [2010]). Finally, the wife failed to provide documentation
that she owed any fees to attorneys (compare Yarinsky v Yarinsky,
25 AD3d 1042, 1042-1043 [2006]). Accordingly, Supreme Court did
not abuse its discretion in concluding that the husband rebutted
the presumption of the wife's entitlement to counsel fees.

      The wife's remaining contentions have been examined and
found to be without merit.

     Peters, P.J., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
