| Johnston v Johnston |
| 2009 NY Slip Op 04492 [63 AD3d 1555] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Carol R. Johnston, Appellant, v Daniel S. Johnston,Respondent. |
—[*1] John P. Pieri, Buffalo, for defendant-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.),entered February 28, 2008 in a divorce action. The judgment, among other things, directedplaintiff to pay defendant child support.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing that defendant's pro rata share of the child support obligation is 71% and plaintiff'spro rata share of the child support obligation is 29% and that plaintiff shall pay to defendant theamount of $111.54 per week for child support and as modified the judgment is affirmed withoutcosts.
Memorandum: Plaintiff appeals from a judgment of divorce that, inter alia, directed her topay to defendant the sum of $146.15 per week in child support, directed defendant to pay toplaintiff the sum of $1,850 per month in maintenance for a period of five years and the sum of$1,650 per month in maintenance for a period of one year thereafter, and denied plaintiff'srequest for counsel fees.
Contrary to plaintiff's contention, we conclude that Supreme Court properly determined thatdefendant was the custodial parent with respect to the issue of child support. Pursuant to theexpress terms of the parties' stipulation, defendant was the primary residential parent, andplaintiff made no showing that the stipulation was unenforceable, i.e., that it was " 'tainted bymistake, fraud, duress, overreaching or unconscionability' " (Cheruvu v Cheruvu, 59 AD3d 876, 878 [2009]; see generally Canarelli v Canarelli, 58AD3d 658 [2009]). We agree with plaintiff, however, that the court erred in including theamount of maintenance awarded to her in determining her income for the purpose of calculatingthe amount of child support that she was required to pay to defendant (see Simon v Simon, 55 AD3d 477[2008]; Frost v Frost, 49 AD3d1150, 1152 [2008]), and we further conclude that the court erred in failing to deduct theFICA tax payments from the salaries earned by both parties (see Domestic RelationsLaw § 240 [1-b] [b] [5] [vii] [H]; Beece v Beece, 289 AD2d 352 [2001];Frankel v Frankel, 287 AD2d 686 [2001]). We therefore modify the judgment byproviding that defendant's pro rata share of the child support obligation is 71% and plaintiff's prorata share of the child support obligation is 29% and that plaintiff shall pay to defendant theamount of $111.54 per week for child support.[*2]
We reject the further contention of plaintiff that the courtabused its discretion in awarding her the sum of only $1,850 per month in maintenance for afive-year period. Indeed, we conclude that the court properly took into consideration thestatutory maintenance factors, including the parties' standard of living during the marriage(see Domestic Relations Law § 236 [B] [6] [a]; Hartog v Hartog, 85 NY2d36, 50-51 [1995]). Finally, we reject the contention of plaintiff that the court abused itsdiscretion in denying her request for counsel fees. "[F]or a party to be entitled to an award ofcounsel fees, there must be sufficient documentation to establish the value of the servicesperformed" (Reynolds v Reynolds, 300 AD2d 645, 646 [2002]), and plaintiff failed toprovide such documentation. Present—Scudder, P.J., Smith, Fahey, Carni and Pine, JJ.