| McCarthy v McCarthy |
| 2008 NY Slip Op 10380 [57 AD3d 1481] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Della M. McCarthy, Respondent, v Stephen D. McCarthy,Appellant. |
—[*1] Moriarty & Grocott, Buffalo (Steven H. Grocott of counsel), for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Donna M. Siwek, J.), enteredAugust 27, 2007 in a divorce action. The judgment, insofar as appealed from, awarded plaintiffdurational maintenance and a share of a certain retirement account of defendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from a judgment of divorce that, inter alia, awarded plaintiffdurational maintenance and a share of defendant's 401(k) retirement account pursuant toMajauskas v Majauskas (61 NY2d 481 [1984]). "As a general rule, the amount and durationof maintenance are matters committed to the sound discretion of the trial court" (Boughton vBoughton, 239 AD2d 935, 935 [1997]) and, contrary to defendant's contention, we perceive noabuse of discretion with respect to the award of maintenance. The record establishes that SupremeCourt properly considered the factors set forth in Domestic Relations Law § 236 (B) (6) (a) infashioning a maintenance award that "reflects an appropriate balancing of plaintiff's needs anddefendant's ability to pay" (Torgersen v Torgersen, 188 AD2d 1023, 1024 [1992], lvdenied 81 NY2d 709 [1993]). We further conclude that the court did not abuse its discretion inawarding plaintiff a share of defendant's 401(k) retirement account in accordance with theMajauskas formula in light of, inter alia, the extensive commingling of assets and liabilities duringthe marriage and defendant's wasteful dissipation of both marital property and plaintiff's separateproperty (see generally Berge v Berge, 159 AD2d 960 [1990]). Present—Hurlbutt,J.P., Martoche, Fahey and Gorski, JJ.