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

1242
CA 15-00639
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


MARCELLA HAROLD, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

SYLVESTER HAROLD, DEFENDANT-RESPONDENT.


KUSTELL LAW GROUP, LLP, BUFFALO (CARL B. KUSTELL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

JOHN P. PIERI, BUFFALO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered July 30, 2014. The order, inter alia, denied
that part of plaintiff’s motion seeking equitable distribution of
defendant’s severance benefits.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: By amended order to show cause and supporting
affidavit, plaintiff wife moved for, inter alia, equitable
distribution of severance benefits received by defendant husband after
the entry of a judgment of divorce, and defendant cross-moved to
modify the maintenance provisions of the judgment of divorce. Insofar
as relevant to this appeal, Supreme Court denied that part of
plaintiff’s motion concerning severance benefits, granted defendant’s
cross motion, and ordered a hearing on the issue of maintenance.

     Contrary to plaintiff’s contention, the court did not abuse its
discretion in denying that part of her motion seeking equitable
distribution of defendant’s severance benefits. The record
establishes that, in March 2013, and approximately one year after the
entry of the judgment of divorce, defendant lost his job and received
a severance payment from his employer. Defendant subsequently used
the entire severance payment to pay his own living expenses and to pay
maintenance to plaintiff through December 2013. We conclude that the
severance payments are defendant’s separate property inasmuch as his
“right to receive those payments did not exist either during the
marriage or prior to the commencement of this action, nor did the
severance payments constitute compensation for past services” (Bink v
Bink, 55 AD3d 1244, 1245). In any event, even assuming, arguendo,
that the severance payment was marital property, the court’s
determination was not an abuse of discretion inasmuch as plaintiff had
already benefitted from the severance payment in the form of
                                 -2-                          1242
                                                         CA 15-00639

maintenance (see generally Domestic Relations Law § 236 [B] [5] [c];
Arvantides v Arvantides, 64 NY2d 1033, 1034). We reject plaintiff’s
further contention that the court erred in denying her request for
attorneys’ fees she incurred in seeking equitable distribution of the
severance payment. “The evaluation of what constitutes reasonable
[attorneys’] fees is a matter within the sound discretion of the trial
court” (Rooney v Rooney [appeal No. 3], 92 AD3d 1294, 1296, lv denied
19 NY3d 810 [internal quotation marks omitted]) and, given our
determination concerning the severance payment, we perceive no abuse
of the court’s discretion here.

     Plaintiff also contends that the court should have denied
defendant’s cross motion to modify maintenance. We reject that
contention. Although defendant failed to include a sworn statement of
net worth with his cross-moving papers as required by 22 NYCRR
202.16 (k) (2), we conclude that the court did not abuse its
discretion in granting defendant’s cross motion and ordering a hearing
on the issue of maintenance inasmuch as the court would have the
opportunity to consider the parties’ relative financial circumstances
at the hearing (see generally People v Simmons, 26 AD3d 883, 884;
Trento v Trento, 226 AD2d 1104, 1105). Contrary to plaintiff’s
further contention, the court’s order did not retroactively modify
defendant’s maintenance obligation.

     In light of our determinations with respect to the above
contentions, we do not address plaintiff’s remaining contention
concerning damages.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
