        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

469
CA 11-00085
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


BRENDA L. D’AMBRA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RICHARD T. D’AMBRA, DEFENDANT-RESPONDENT.
-----------------------------------------
DEAN J. FERO, ATTORNEY FOR THE CHILDREN,
APPELLANT.
(APPEAL NO. 2.)


DAVIDSON FINK, LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

DEAN J. FERO, ATTORNEY FOR THE CHILDREN, ROCHESTER, APPELLANT PRO SE.

SAMUEL A. DISPENZA, JR., EAST ROCHESTER (TERRENCE G. BARKER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeals from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), entered December 27, 2010 in a divorce action. The
judgment, among other things, dissolved the marriage between the
parties.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating that part equitably
distributing plaintiff’s M&T savings account as well as those parts
precluding plaintiff from sharing in defendant’s early retirement
benefits or enhanced pension payments, if any, and as modified the
judgment is affirmed without costs.

     Memorandum: In this matrimonial action, plaintiff wife and the
Attorney for the Children (AFC) appeal from a judgment of divorce that
“incorporated and merged” an amended decision and order issued by
Supreme Court following a trial on issues relating to custody of the
parties’ two children and equitable distribution. With respect to
custody, the court awarded the parties joint custody with primary
physical residence to the wife and visitation to defendant husband on
alternate weekends until Monday morning, every Wednesday from 4:00
P.M. to 7:30 P.M., and Sunday afternoons from 3:00 P.M. to 7:00 P.M. on
the weekends during which the husband does not otherwise have
visitation. The court further determined that, if the husband
obtained a “suitable residence,” i.e., an appropriately sized and
equipped apartment within five miles of the wife’s residence, within
six months of its amended decision and order, the residency schedule
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                                                         CA 11-00085

would be adjusted to afford the parties equal time with the children.
Finally, with respect to custody, the court ordered that the parent
whose residency period is beginning shall be responsible for picking
up the children from the other parent’s residence.

     The wife challenges the court’s residency schedule on several
grounds. She initially contends that the court erred in determining
that the husband shall automatically be entitled to equal time with
the children if he obtained a “suitable residence” within six months
of the amended decision and order. That contention is moot, however,
inasmuch as the husband did not obtain a “suitable residence” within
the requisite six months, and indeed still has not done so. The wife
further contends, and the AFC agrees, that the court erred in awarding
the father visitation on Sunday afternoons with the children on the
weekends that he does not have residency. According to the wife, the
schedule deprives her of quality time with the children because she
never has the children for an entire weekend. We reject that
contention. Because the wife is permanently disabled and does not
work, the court’s residency schedule affords her ample quality time
with the children (see generally Chamberlain v Chamberlain, 24 AD3d
589, 592-593). She has the children every day after school and most
week nights, as well as on alternate weekends until Sunday afternoon.
“It is well settled that visitation issues are determined based on the
best interests of the children . . . and that trial courts have
‘broad discretion in fashioning a visitation schedule’ ” (Veronica S.
v Philip R.S., 70 AD3d 1459, 1459). Affording deference to the
court’s determination and its “first-hand assessment” of the parties
(Matter of Thayer v Thayer, 67 AD3d 1358, 1359), we cannot conclude
that the court erred in awarding visitation to the husband on
alternate Sunday afternoons.

     The wife further challenges the custody provisions of the amended
decision and order insofar as it requires her to transport the
children from the husband’s residence to school on alternate Monday
mornings. It appears from the wife’s brief on appeal, however, that
her challenge may be moot. According to the wife’s brief, the court
clarified its amended decision and order after it was rendered to make
clear that the transportation provision did not apply to Monday
mornings, and the husband has agreed to provide such transportation.
In any event, we conclude that, because the record demonstrates that
the wife is capable of operating a motor vehicle without difficulty
despite her disability, the court did not err in requiring her to
share equally in the transportation burden associated with the
residency schedule on alternate Monday mornings. In addition, we
reject the AFC’s contention that the court should have required the
husband to provide all of the transportation for visitation and
residency. We also reject the AFC’s contentions that the court erred
in awarding residency of the children to the husband on alternate
school breaks and holidays, and in failing to direct the parties to
attend the Assisting Children through Transition program (see
generally Veronica S., 70 AD3d at 1459).

     With respect to equitable distribution, there is no merit to the
wife’s contention that the court erred in granting one dependency
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                                                         CA 11-00085

exemption to each party while allowing the husband to purchase in any
given year the wife’s exemption for the amount of tax savings the wife
would have realized were she to claim the child on her tax return. We
note at the outset that the wife does not appear to be aggrieved
thereby. According to the uncontradicted testimony of the husband’s
tax expert, the wife will derive no benefit from the dependency
exemption due to her limited income, which consists solely of
disability benefits. In any event, “[n]othing in the language of the
federal tax law limits the discretion of a state court to allocate the
dependency exemption” (Agnello v Payne, 26 AD3d 837, lv denied 7 NY3d
707), and the court therefore could have awarded both exemptions to
the husband.

     We agree with the wife, however, that the court erred in awarding
the husband one half of the funds in the wife’s M&T savings account as
of the date of commencement of the action, and we therefore modify the
judgment accordingly. That account was in the wife’s name only, and
she established at trial that the funds therein came exclusively from
her disability payments. Domestic Relations Law § 236 (B) (1) (d) (2)
provides that “compensation for personal injuries” is separate
property not subject to equitable distribution, and disability
payments constitute compensation for personal injuries (see Miceli v
Miceli, 78 AD3d 1023, 1025; Masella v Masella, 67 AD3d 749, 750;
Solomon v Solomon, 206 AD2d 971).

     We conclude that the court erred in determining that the wife
shall not share in any early retirement benefits or enhanced pension
payments, if any, that the husband may receive in the future. We thus
further modify the judgment accordingly. “Vested rights in a
noncontributory pension plan are marital property to the extent that
they were acquired between the date of the marriage and the
commencement of a matrimonial action, even though the rights are
unmatured at the time the action is begun” (Majauskas v Majauskas, 61
NY2d 481, 485-486). Although Social Security bridge payments and
severance payments generally are not subject to distribution under
Majauskas, early retirement or pension benefits of the type at issue
in this case have been treated differently (see Olivo v Olivo, 82 NY2d
202, 207-209).

     We reject the wife’s contention that the court erred in awarding
her only a 15% share of the husband’s business, given that the wife
made only indirect contributions to that business (see e.g. Peritore v
Peritore, 66 AD3d 750, 753; Hiatt v Tremper-Hiatt, 6 AD3d 1014, 1016).
Finally, we conclude that the “ ‘equities of the case and the
financial circumstances of the parties’ ” support the court’s refusal
to award attorney’s fees to plaintiff (Matter of William T.M. v Lisa
A.P., 39 AD3d 1172, 1173).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
