| Burns v Burns |
| 2010 NY Slip Op 01285 [70 AD3d 1501] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Robin Burns, Appellant, v Thomas E. Burns,Respondent. |
—[*1] William R. Hites, Buffalo, for defendant-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredJuly 30, 2008 in a divorce action. The judgment, inter alia, directed defendant to pay to plaintiffchild support and maintenance.
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 and the uninsuredmedical costs of the children is 67% and plaintiff's pro rata share of the child support obligationand the uninsured medical costs of the children is 33% and that defendant shall pay to plaintiffthe amount of $88.92 per week for child support and as modified the judgment is affirmedwithout costs.
Memorandum: Plaintiff appeals from a judgment of divorce that, inter alia, directeddefendant to pay to plaintiff $61.50 per week in child support and $19,500 per year inmaintenance for a period of three years, distributed the parties' debts and assets, and deniedplaintiff's request for counsel fees. Contrary to plaintiff's contention, we conclude that SupremeCourt did not abuse its discretion in refusing to award child support on the parties' combinedincome in excess of $80,000 (see generally Matter of Cassano v Cassano, 85 NY2d 649,655 [1995]). In deciding to limit the child support award to the first $80,000 in combinedparental income, the court properly relied on the factors set forth in Domestic Relations Law§ 240 (1-b) (f) including, inter alia, the fact that the parties' financial resources after thepayment of maintenance would be roughly equivalent, the fact that each parent would have onechild living with him or her, and the fact that there would be no change in the children's standardof living as a result of the divorce (see generally Bast v Rossoff, 91 NY2d 723, 727[1998]). The court also found significant the fact that the additional parenting responsibilities ofdefendant following the divorce will likely impact his ability to enhance his salary by workingovertime.
We agree with plaintiff, however, that the court erred in including the amount ofmaintenance awarded to her in her income for the purpose of calculating the parties' respectivechild support obligations (see Johnstonv Johnston, 63 AD3d 1555 [2009]; Frost v Frost, 49 AD3d 1150, 1152 [2008]; Huber v Huber,229 AD2d 904, 904-905 [1996]), and that the court applied the incorrect child supportpercentage in its calculation of child support. In split custody situations, the court must"determine the basic child [*2]support obligation on a perhousehold basis with the controlling percentage for each such home determined according tohow many children are living with the same custodial parent . . . [and the courtmust then] prorate the basic child support obligation in proportion to each parent's income"(Matter of DeVoe v Erck, 226 AD2d 1111, 1112 [1996] [internal quotation marksomitted]). We therefore modify the judgment by providing that defendant's pro rata share of thechild support obligation and the uninsured medical costs of the children is 67% and plaintiff'spro rata share of the child support obligation and the uninsured medical costs of the children is33% and that defendant shall pay to plaintiff the amount of $88.92 per week for child support.
We reject the further contention of plaintiff that the court abused its discretion in awardingher only $19,500 per year in maintenance for a period of three years after the sale of the maritalresidence. Here, the record establishes that the court properly considered the statutorymaintenance factors, including the fact that plaintiff is self-supporting and has the capacity toincrease her earnings in the future (see Domestic Relations Law § 236 [B] [6] [a];Mayle v Mayle, 299 AD2d 869 [2002]). We thus conclude that the court's maintenanceaward "reflects an appropriate balancing of plaintiff's needs and defendant's ability to pay"(Torgersen v Torgersen, 188 AD2d 1023, 1024 [1992], lv denied 81 NY2d 709[1993]).
We further conclude that the court did not abuse its broad discretion in distributing theparties' debts (see Corless vCorless, 18 AD3d 493, 494 [2005]; see also Evans v Evans, 55 AD3d 1079, 1081 [2008]). The courtproperly considered the factors set forth in Domestic Relations Law § 236 (B) (5) (d) andallocated marital debts in roughly the same proportion as it distributed the parties' limited maritalassets, with a distributive award that slightly favored plaintiff. In making the distribution, thecourt did not credit defendant for the $11,000 reduction in the mortgage principal on the maritalhome during the pendency of the action, and it equally divided the proceeds from the sale of themarital home. Finally, we reject the contention of plaintiff that the court abused its discretion indenying her request for counsel fees. Present—Centra, J.P., Peradotto, Carni, Pine andGorski, JJ.