| Haines v Haines |
| 2007 NY Slip Op 08036 [44 AD3d 901] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Deborah B. Haines, Respondent, v Gregory L. Haines,Appellant. |
—[*1] Deborah Bzdick, formerly known as Deborah B. Haines, Cuddebackville, N.Y., respondentpro se.
In a matrimonial action in which the parties were divorced by judgment dated September 23,2004, the defendant appeals, by permission, from so much of an order of the Supreme Court,Orange County (Slobod, J.), dated June 21, 2006, as, after a nonjury trial, awarded the plaintiffmaintenance in the sum of $1,200 per month until May 1, 2019.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof awarding the plaintiff maintenance in the sum of $1,200 per month untilMay 1, 2019 and substituting therefor a provision awarding the plaintiff maintenance in the sumof $900 per month until May 1, 2019 or until the death of either party or the plaintiff'sremarriage, whichever shall occur sooner; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The "amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court" (Grumet v Grumet,37 AD3d 534, 535 [2007]; Scarlett v Scarlett, 35 AD3d 710, 711 [2006]; see Rizzuto v Rizzuto, 21 AD3d545 [2005]). In determining the appropriate amount and duration of maintenance, the courtis required to consider, among other factors, the standard of living of the parties during themarriage and the present and future earning capacity of both parties (see DomesticRelations Law § 236 [B] [6] [a]; Levine v Levine, 37 AD3d 550, 551 [2007], lv denied 8NY3d 1003 [2007]; Shapiro v Shapiro,35 AD3d 585, 587-588 [2006]; Herzog v Herzog, 18 AD3d 707, 708 [2005]). Here, the SupremeCourt improvidently exercised its discretion in failing to impute income from the plaintiff'ssecond job as [*2]a data entry clerk since that income contributedto the predivorce standard of living and was demonstrative of the plaintiff's earning capacity (see Parise v Parise, 13 AD3d 504,505 [2004]; Matter of Barrow v Hammond, 305 AD2d 496 [2003]). The plaintiff hadbeen working at the second job for several years prior to the commencement of the matrimonialaction, and the defendant had been working for considerably more than 40 hours per week duringthis time period. Additionally, while the plaintiff had been earning only approximately $39,000per year at the time of the commencement of this action, by the time the matter was heard by thetrial court, she had increased her earnings to approximately $56,000. Unlike the EquitableDistribution Law (see Domestic Relations Law § 236 [B] [5] [d] [1]), DomesticRelations Law § 236 (B) (6) (a) (1) contains no express time limitation with respect tocalculating income (see 14 Scheinkman, NY Practice Commentaries, McKinney's ConsLaws of NY, Book 14, Domestic Relations Law § C236B:36, at 457). Thus, whenconsidering the "income and property of the respective parties," the trial court should not excludeany property or income increase which has occurred between the time of commencement of theaction and the time of trial (id.). Accordingly, the trial court should have attributed to theplaintiff a yearly income of $56,000 (see Domestic Relations Law § 236 [B] [6] [a][1]).
Additionally, the trial court erred in failing to include a provision that the award ofmaintenance will terminate upon the death of either party or the plaintiff's remarriage (seeDomestic Relations Law § 236 [B] [1] [a]; Gold v Gold, 276 AD2d 587[2000]; Shattuck v Shattuck, 255 AD2d 999 [1998]; Newton v Newton, 246AD2d 765 [1998]). Schmidt, J.P., Fisher, Lifson and Carni, JJ., concur.