                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   522154
________________________________

ROBERT R. SPROLE III,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LINDA S. SPROLE,
                    Appellant.
________________________________


Calendar Date:   November 18, 2016

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

                             __________


     Linda S. Sprole, Ithaca, appellant pro se.

      D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Ames, J.),
entered September 22, 2015 in Tompkins 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 1994 and have two
daughters (born in 1996 and 2005). In 2009, the husband moved
out of the marital home and commenced this action for divorce.
The parties stipulated to the ground for divorce and, in March
2013, an order was entered awarding the parties joint legal
custody of the older daughter, with physical custody to the
mother, and granting sole legal and physical custody of the
younger daughter to the father. Following a nonjury trial on the
remaining issues that divided the parties, Supreme Court issued a
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judgment of divorce which, among other things, awarded
maintenance to the wife in the amount of $8,000 per month for
five years, set the husband's monthly child support obligation at
$1,997.50, distributed the marital assets and directed the
husband to pay $200,000 of the wife's counsel fees. Overall, the
parties' marital assets were distributed equally, with the
exception of the husband's interest in the closely held company
for which he served as the chief executive officer, of which the
wife was awarded 30% of the stipulated value to be paid in five
annual installments of $60,000 with a balloon payment of $600,000
in the sixth year. The judgment also directed that the marital
home be listed for immediate sale, with the net proceeds
therefrom to be divided equally between the parties. The wife
appeals.

      We first address the wife's challenge to the award of
spousal maintenance. "The amount and duration of a maintenance
award are addressed to the sound discretion of the trial court,
and will not be disturbed provided that the statutory factors and
the parties' predivorce standard of living are considered"
(Robinson v Robinson, 133 AD3d 1185, 1186 [2015] [internal
quotation marks and citations omitted]; see Domestic Relations
Law § 236 [B] [former (6)]; Cervoni v Cervoni, 141 AD3d 918, 919
[2016]). The court must set forth a reasoned analysis of the
factors it relies upon in fashioning the award, "but it 'is not
required to analyze and apply every factor set forth in [the
statute]'" (Curley v Curley, 125 AD3d 1227, 1228 [2015], quoting
McAteer v McAteer, 294 AD2d 783, 784 [2002]; see Robinson v
Robinson, 133 AD3d at 1186).

       Here, Supreme Court fully acknowledged the significant
disparity in the parties' income, noting that the husband was
earning an annual salary of approximately $415,000 at the time of
trial while the wife, having left the workforce in 1996 following
the birth of the parties' older child, had no income. The court
also recognized, however, that the wife was relatively young, in
good health, has a Bachelor's degree and could return to full-
time employment given that the child in her custody was 18 years
old and attending college, yet she had made no effort to secure
employment throughout the six-year period during which this
divorce action was pending. Moreover, the husband had been
                              -3-                522154

paying the mortgage and carrying costs on the marital residence –
which the wife was occupying – during the pendency of this
action, and the wife stands to receive substantial sums from the
equitable distribution award, including roughly $200,000 from the
sale of the marital residence, $900,000 for her share in the
husband's business and nearly $140,000 for her portion of the
remaining marital assets. Given Supreme Court's consideration of
the relevant factors and mindful that the primary purpose of
maintenance "is to encourage rehabilitation and self-sufficiency
to the extent possible, while still accounting for a large
discrepancy in earning power between the parties" (Quinn v Quinn,
61 AD3d 1067, 1071 [2009] [internal quotation marks and citations
omitted]; accord Schwalb v Schwalb, 50 AD3d 1206, 1210 [2008]),
we perceive no abuse of discretion in the court's award of
$96,000 in annual maintenance for a five-year period (see
Macaluso v Macaluso, ___ AD3d ___, ___, 2016 NY Slip Op 08418, *2
[2016]; Doscher v Doscher, 137 AD3d 962, 963-964 [2016], lv
denied 27 NY3d 912 [2016]; Musacchio v Musacchio, 107 AD3d 1326,
1331 [2013]; Quinn v Quinn, 61 AD3d at 1071; Milnarik v Milnarik,
23 AD3d 960, 962 [2005]).

      Next, we find no error in Supreme Court's calculation of
the husband's child support obligation. The court applied the
statutory percentage for one child (the older daughter in the
wife's custody) to the first $141,000 of combined parental
income, 100% of which was attributable to the husband, resulting
in a monthly obligation of $1,997.50. Because the combined
parental income of $415,000 exceeded the then-applicable
statutory cap, Supreme Court was required to determine what
amount, if any, of that excess income would be designated as part
of the child support obligation by considering the statutory
percentage and/or the factors set forth in Domestic Relations Law
§ 240 (1-b) (f) (see Domestic Relations Law § 240 [1-b] [b] [3];
[c] [3]; [f]; Holterman v Holterman, 3 NY3d 1, 10-12 [2004];
Vantine v Vantine, 125 AD3d 1259, 1262 [2015]; Sadaghiani v
Ghayoori, 97 AD3d 1013, 1013-1014 [2012]; Smith v Smith, 1 AD3d
870, 872 [2003]). Supreme Court listed several factors it
considered before finding that none of the combined income over
the statutory cap should be considered in calculating the
husband's child support obligation with respect to the older
daughter, including, most notably, that the husband is paying all
                              -4-                522154

of the expenses of the younger daughter in his custody, having
waived child support from the wife for this child. Also bearing
on the court's determination was the fact that the older child
was enrolled in college and had access to a college savings
account containing nearly $85,000, and that the husband had
agreed to pay any remaining costs associated with the children's
attendance at a four-year university and remained responsible for
100% of the children's insurance coverage as well as any
outstanding medical, dental and optical expenses. Considering
all of the facts and circumstances, including the substantial
assets available to the wife through the distributive award (see
Holterman v Holterman, 3 NY3d at 14; Carman v Carman, 22 AD3d
1004, 1006 [2005]), we cannot say that Supreme Court abused its
considerable discretion in determining that an award of child
support on the amount of income over the statutory cap was not
warranted (see Weitzner v Weitzner, 120 AD3d 1406, 1407-1408
[2014]; Betro v Carbone, 24 AD3d 1322, 1323-1324 [2005]; compare
Hymowitz v Hymowitz, 119 AD3d 736, 743 [2014]).

      The wife further challenges Supreme Court's decision to
give the husband credits representing the amount of the pendente
lite maintenance and child support payments he made. Pursuant to
Domestic Relations Law § 236 (B) (former [6]) (a) and (7) (a), in
effect at the time of the commencement of the action, an award of
maintenance and child support is effective as of the date of the
application therefor, and retroactive amounts of maintenance and
support shall be paid, as the court directs, "taking into account
any amount of temporary maintenance [or child support] which has
been paid" (see Burns v Burns, 84 NY2d 369, 377 [1994]; McKay v
Groesbeck, 117 AD3d 810, 811 [2014]; Verdrager v Verdrager, 230
AD2d 786, 788 [1996]). "These provisions require a court to
provide for retroactive payments of permanent maintenance and
support only where the award is in excess of any temporary
maintenance and support award, however, and do not require the
granting of credits for past overpayments of temporary
maintenance and support" (Foxx v Foxx, 114 AD2d 605, 607 [1985]
[citations omitted]; see Vicinanzo v Vicinanzo, 210 AD2d 863, 864
[1994]; Rodgers v Rodgers, 98 AD2d 386, 389-390 [1983], appeal
dismissed 62 NY2d 646 [1984]).
                              -5-                522154

      Here, the permanent order of maintenance retroactively set
a higher rate than that paid by the husband during the pendency
of the action, thereby creating an immediate arrearage and
entitling him to a credit for such past payments (see Foxx v
Foxx, 114 AD2d at 607). With respect to child support, however,
the converse is true; the temporary support payments already made
by the husband pursuant to the pendente lite order exceeded the
retroactive support obligation set forth by Supreme Court.
Absent any statutory authority for recoupment of overpayments of
child support and given the "'strong public policy against
restitution or recoupment of [such] overpayments'" (Johnson v
Chapin, 12 NY3d 461, 466 [2009], quoting Baraby v Baraby, 250
AD2d 201, 205 [1998]; see Matter of Apjohn v Lubinski, 114 AD3d
1061, 1064 [2014], lv denied 23 NY3d 902 [2014]), we conclude
that Supreme Court erred in crediting the husband for the
temporary child support payments that he made in excess of what
he was required to pay under the final child support award (see
Baraby v Baraby, 250 AD2d at 205; Stempler v Stempler, 143 AD2d
410, 413 [1988], lv dismissed 74 NY2d 715 [1989], lv denied 75
NY2d 709 [1990]).

      As to the equitable distribution award, while the wife does
not take issue with Supreme Court's decision to distribute 30% of
the value of the husband's interest in the business, she claims
that the court improvidently exercised its discretion by ordering
that sum to be paid in yearly installments without interest. It
is settled that "the manner in which a distributive award is to
be paid is discretionary" (Smith v Smith, 17 AD3d 959, 960
[2005]; accord Mairs v Mairs, 61 AD3d 1204, 1208 [2009]; see
Unger-Matusik v Matusik, 276 AD2d 936, 938 [2000]). Considering
the amount of the award and the nonliquidity of the husband's
interest, and recognizing that the $900,000 is free of tax
consequences to the wife, we find that permitting the husband to
pay the wife over a six-year period without interest was an
appropriate exercise of the court's discretion (see Dewitt v
Sheiness, 42 AD3d 776, 778 [2007]; Basile v Basile, 199 AD2d 649,
652 [1993]).

      We now turn to Supreme Court's order concerning the sale of
the marital residence. In light of the custodial status and age
of the children, as well as the absence of any proof that the
                              -6-                522154

wife could afford to maintain the marital residence if awarded
exclusive use and possession, it was not inappropriate for
Supreme Court to direct that it be sold (see Bernard v Bernard,
126 AD3d 658, 659 [2015]; Carney v Carney, 202 AD2d 907, 910
[1994]; Church v Church, 169 AD2d 851, 853 [1991]; Tanner v
Tanner, 107 AD2d 980, 982 [1985]). While Supreme Court's
decision declined to permit the wife a "buy-back option" in an
amount less than the appraised value of the marital residence,
nothing in the decision or judgment of divorce precludes her from
purchasing the husband's interest in the home or making an offer
to purchase the home for an amount less than the listing price.
Nor can we conclude, under the particular circumstances presented
herein, that Supreme Court abused its discretion in ordering that
the home be sold at a public auction in the event that it
remained on the market for six months (see Domestic Relations Law
§ 234; Hickland v Hickland, 79 AD2d 736, 736-737 [1980]).1

      Briefly addressing the parties' credit card debt, inasmuch
as the wife represented to Supreme Court in her statement of
proposed disposition that such debt was a marital liability, she
cannot now be heard to complain that the court erred in treating
it as such (see Robinson v Robinson, 133 AD3d at 1190). In any
event, the record reflects that the debt, which accrued during
the marriage, was not incurred for the husband's exclusive
benefit or in pursuit of his separate interests (see Funaro v
Funaro, 141 AD3d 893, 897 [2016]; Wagner v Wagner, 136 AD3d 1335,
1336 [2016]; McKeever v McKeever, 8 AD3d 702, 702-703 [2004]).
The wife's vehicle, acquired during the marriage and listed as a
marital asset in her statement of proposed disposition, likewise
constituted marital property subject to equitable distribution
(see Domestic Relations Law § 236 [B] [1] [c]; Robinson v
Robinson, 133 AD3d at 1190). The husband's boat, on the other
hand, was his separate property inasmuch as it was acquired
subsequent to the commencement of this action.



    1
        We similarly note that Supreme Court's decision and
judgment in no way prohibit the wife – or the husband – from
ultimately purchasing the home in the event that it is put up for
sale at public auction.
                              -7-                522154

       As for the parties' furnishings, Supreme Court ordered
that those located at the marital residence be divided equally
between the parties, but failed to account for certain items of
property that were removed from the marital residence by the
husband following the parties' separation. The value of such
furnishings, like those located at the marital residence, should
be divided equally amongst the parties.

      Supreme Court directed that any balance remaining in the
children's college savings accounts when they attain the age of
30 revert to the parties themselves, despite the parties'
stipulation at trial that any such balance would be divided
equally between the children. Inasmuch as Supreme Court provided
no reason for its decision to deviate from the parties'
stipulated disposition, and both the husband and the wife agree
that the court should not have done so, we will modify the
judgment accordingly.

      Finally, considering "the financial circumstances of both
parties together with all the other circumstances of the case"
(Johnson v Chapin, 12 NY3d at 467 [internal quotation marks and
citations omitted]; see Domestic Relations Law § 237 [a]), we
find that Supreme Court providently exercised its discretion in
limiting the husband's contribution towards the wife's counsel
fees to $200,000 (see Murphy v Murphy, 125 AD3d 1265, 1267
[2015]; Ansour v Ansour, 61 AD3d 536, 537 [2009]; Matter of
Yarinsky v Yarinsky, 36 AD3d 1135, 1141 [2007]).

      The wife's remaining contentions are either not properly
before us or have been examined and found to be without merit.

     McCarthy, Egan Jr., Lynch and Devine, JJ., concur.
                              -8-                  522154

      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as (1) awarded plaintiff a
credit for child support overpayments and (2) directed that any
balance remaining in the children's college savings accounts,
when the children attain the age of 30, be divided equally
between plaintiff and defendant; award defendant a refund of
$53,495 in child support, resulting in an increase of her
distributive award payable upon the sale of the marital
residence, direct that any balance remaining in the children's
college savings accounts, when the children attain the age of 30,
be divided equally between the children, direct that any
furnishings removed from the marital residence by plaintiff be
divided equally between plaintiff and defendant and 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
