SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
737
CA 13-02054
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.
DIANE E. MARFONE, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
LAWRENCE S. MARFONE, DEFENDANT-APPELLANT.
KALIL & EISENHUT, LLC, UTICA (CLIFFORD C. EISENHUT OF COUNSEL), FOR
DEFENDANT-APPELLANT.
Appeal from an amended judgment of the Supreme Court, Oneida
County (Joan E. Shkane, A.J.), entered June 19, 2013 in a divorce
action. The amended judgment, among other things, dissolved the
marriage between the parties and ordered defendant to pay spousal
maintenance.
It is hereby ORDERED that the amended judgment so appealed from
is unanimously modified on the law by reducing the amount of life
insurance defendant is required to obtain to secure his child support
obligation from $500,000 to $300,000, by providing that defendant may
obtain a declining term life insurance policy, by striking the
provision requiring defendant to “name each child as irrevocable
beneficiary on life insurance available to him through his employer,
as well as death benefits, until each child is emancipated,” and by
reducing the award of counsel fees to plaintiff from $18,000 to $9,000
and as modified the amended judgment is affirmed without costs in
accordance with the following Memorandum: Defendant appeals from an
amended judgment of divorce that, inter alia, directed him to pay
maintenance and child support and awarded $18,000 in counsel fees to
plaintiff. Contrary to defendant’s contention, Supreme Court did not
abuse its discretion with respect to the amount or duration of the
maintenance award, and we decline to substitute our discretion for
that of the court (see Martin v Martin, 115 AD3d 1315, 1316).
Contrary to defendant’s further contention, the court properly
required him to maintain policies of life insurance to secure his
child support and maintenance obligations (see Domestic Relations Law
§ 236 [B] [8] [a]; Martin, 115 AD3d at 1316). We agree with
defendant, however, that the amount of life insurance the court
required defendant to maintain with respect to his child support
obligations is excessive, and we therefore modify the amended judgment
by reducing the amount of that life insurance from $500,000 to
$300,000 (see generally Florio v Florio, 25 AD3d 947, 951; Konigsberg
v Konigsberg, 3 AD3d 330, 331).
-2- 737
CA 13-02054
Inasmuch as defendant’s continuing child support obligation will
decline as each of the children of the marriage either becomes
emancipated or reaches the age of 21 (see Domestic Relations Law § 240
[1-b] [b] [2]), we further modify the amended judgment by providing
that the amount of life insurance defendant is required to obtain to
secure his child support obligation may have a declining term that
would permit defendant to reduce the amount of life insurance by the
amount of child support actually paid, provided that at all times the
amount of life insurance is not less than the amount of child support
remaining unpaid (see generally Florio, 25 AD3d at 951). We also
modify the amended judgment by striking therefrom the provision
requiring defendant to name each child of the marriage as irrevocable
beneficiary on life insurance and death benefits available to
defendant through his employer until each child is emancipated.
Defendant further contends that the award of counsel fees to
plaintiff was improper. We note that Domestic Relations Law § 237 (a)
provides in relevant part that, “[i]n any action or proceeding brought
. . . for a divorce, . . . the court may direct either spouse . . . to
pay counsel fees and fees and expenses of experts directly to the
attorney of the other spouse to enable the other party to carry on or
defend the action or proceeding as, in the court’s discretion, justice
requires, having regard to the circumstances of the case and of the
respective parties. There shall be [a] rebuttable presumption that
counsel fees shall be awarded to the less monied spouse.” Under the
circumstances of this case, we conclude that the court abused its
discretion in awarding plaintiff $18,000 in counsel fees, and we
therefore further modify the amended judgment by reducing the amount
of that award to $9,000 (cf. Johnson v Chapin, 12 NY3d 461, 467, rearg
denied 13 NY3d 888; Gelia v Gelia, 114 AD3d 1263, 1263-1264).
Finally, we have considered the remaining contentions of
defendant, and we conclude that they are without merit.
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court