| Simon v Simon |
| 2008 NY Slip Op 08250 [55 AD3d 477] |
| October 30, 2008 |
| Appellate Division, First Department |
| Bruce S. Simon, Respondent, v Amy E. Simon,Appellant. |
—[*1] Epstein Becker & Green, P.C., New York (Barry A. Cozier of counsel), forrespondent.
Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered April 1, 2006,inter alia, distributing marital property and awarding defendant maintenance and child support,unanimously modified, on the law and the facts, to delete the award of child support and toinclude an award of health insurance coverage separate from plaintiff's other maintenanceobligations, the matter remanded to the trial court for a recalculation of the parties' respectivechild support obligations, and for a finding as to the cost of health insurance for defendant at thepredivorce level of coverage, and otherwise affirmed, without costs.
While no basis exists to disturb the trial court's crediting of plaintiff's testimony regarding thereduction in his income and its resulting finding that the parties' predivorce lifestyle cannot besupported by their present combined income, under the circumstances, including the disparity inthe parties' future earning capacity and defendant's ongoing health problems, the court shouldhave directed that plaintiff pay defendant the cost of private health insurance, in addition to hisregular nondurational maintenance obligation of $10,000 per month (see Guneratne vGuneratne, 214 AD2d 871, 873 [1995]; Feldman v Feldman, 194 AD2d 207, 219[1993]). As the record does not permit a finding as to the cost of such health insurance, weremand for a determination thereof (see Hendricks v Hendricks, 13 AD3d 928, 930[2004]). We also remand for a recalculation of child support, required because the courtimproperly included future maintenance payments as part of defendant's income (see Huber vHuber, 229 AD2d 904 [1996]). Upon recalculation, the trial court should deduct from theplaintiff's income the amount he pays in maintenance, but should not add the same amount todefendant's income (see Tryon v Tryon, 37 AD3d 455 [2007]). The court appropriatelyexercised its discretion in granting a five-day adjournment rather than the longer one requestedby defendant's substitute counsel (see Schneyer v Silberg, 156 AD2d 200, 201 [1989],lv denied 77 NY2d 872 [1991]). Based on the court's schedule and the five-dayadjournment granted, successor counsel had nearly a month to prepare for trial. We haveconsidered defendant's other arguments, including those relating to the classification, valuationand distribution of property and the award of maintenance, and find them unavailing.Concur—Lippman, P.J., Mazzarelli, Williams and Buckley, JJ.