| Bladt v Bladt |
| 2010 NY Slip Op 03054 [72 AD3d 717] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Cheryl Bladt, Appellant, v Willard Bladt,Respondent. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of ajudgment of the Supreme Court, Orange County (Alessandro, J.), dated August 4, 2008, which,inter alia, awarded her durational maintenance only in the sum of $175 per week commencing onMarch 3, 2006, and continuing until July 3, 2009, and incorporated by reference an order of thesame court (Owen, J.), dated June 5, 2008, denying her motion to hold the defendant incontempt.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by deleting the provision thereof awarding the plaintiff durational maintenance in thesum of $175 per week, commencing on March 3, 2006, and continuing until July 3, 2009, andsubstituting therefor a provision awarding the plaintiff durational maintenance in the sum of$250 per week, commencing on May 5, 2004, and continuing until the earlier of the plaintiff'sremarriage or until the plaintiff reaches the age of 66; as so modified, the judgment is affirmedinsofar as appealed from, with costs to the plaintiff.
The Supreme Court erred in failing to make its award of maintenance retroactive to the datethe plaintiff served her summons with notice containing a request for maintenance (seeDomestic Relations Law § 236 [B] [6] [a]; Burns v Burns, 84 NY2d 369, 377[1994]; Grassi v Grassi, 35 AD3d357, 358 [2006]).
Further, the amount and duration of the maintenance was inadequate. "[T]he amount andduration of maintenance is committed to the sound discretion of the trial court, and every casemust be determined on its own unique facts" (Griggs v Griggs, 44 AD3d 710, 711 [2007] [internal quotationmarks omitted]; see Mora v Mora,39 AD3d 829, 830 [2007]). The Supreme Court did not improvidently exercise its discretionin failing to award the now 58-year-old plaintiff nondurational maintenance, but, given thelength of the marriage, the plaintiff's age, the respective roles of the parties in the marriage, theplaintiff's health problems, and the disparity in income, the Supreme Court should have awardedmaintenance to the plaintiff in the sum of $250 per week until the earlier of her remarriage oruntil she reaches the age of 66 (see Baumgart v Baumgart, 199 AD2d 1049, 1050 [1993];Rauer v Rauer, 168 AD2d 549 [1990]; cf. Behan v Behan, 163 AD2d 505, 506[1990]).
The Supreme Court did not improvidently exercise its discretion in denying the plaintiff'smotion to hold the husband in contempt for the violation of an order, as the defendant's failure tocomply with the order was not willful (see York v York, 69 AD3d 620 [2010]).[*2]
The plaintiff's remaining contentions are without merit.Fisher, J.P., Leventhal, Belen and Sgroi, JJ., concur.