| Matter of Talty v Talty |
| 2010 NY Slip Op 06248 [75 AD3d 648] |
| July 27, 2010 |
| Appellate Division, Second Department |
| In the Matter of Kevin J. Talty, Appellant, v Ethel A.Talty, Respondent. |
—[*1] Mark D. Imber, Garden City, N.Y., for respondent.
In a support proceeding pursuant to Family Court Act article 4, the father appeals, as limitedby his brief, from so much of an order of the Family Court, Nassau County (Marks, J.), datedOctober 23, 2009, as denied his objections to an order of the same court (Watson, S.M.), datedApril 15, 2009, which, after a hearing, granted the mother's petition to modify the child supportand maintenance provisions of the parties' judgment of divorce dated September 19, 1996, anddirected him to pay the mother child support in the sum of $709.72 per week and nondurationalmaintenance in the sum of $325.28 per week, and denied his objection to an order of the samecourt dated June 12, 2009, which granted the mother's motion for an award of an attorney's fee inthe sum of $46,490.20.
Ordered that the order dated October 23, 2009, is modified, on the law, on the facts, and inthe exercise of discretion, (1) by deleting the provision thereof denying the father's objection toso much of the order dated April 15, 2009, as directed him to pay child support in the sum of$709.72 per week, and substituting therefor provisions (a) granting that objection, (b) vacatingthe provision of the order dated April 15, 2009, directing the father to pay the mother childsupport in the sum of $709.72 per week, and (c) directing the father to pay the mother childsupport in the sum of $659.76 per week, and (2) by deleting the provision thereof denying thefather's objection to so much of the order dated April 15, 2009, as directed him to pay the mothernondurational maintenance in the sum of $325.28 per week, and substituting therefor provisions(a) granting that objection, (b) vacating the provision of the order dated April 15, 2009, directingthe father to pay the mother nondurational maintenance in the sum of $325.28 per week, and (c)directing the father to pay the mother maintenance in the sum of $325.28 per week until sheattains the age of 62; as so modified, the order dated October 23, 2009, is affirmed insofar asappealed from, without costs or disbursements.
The Family Court properly granted that branch of the mother's petition which was to modifythe parties' judgment of divorce so as to award her maintenance. The hearing record supports theFamily Court's determination that the mother is disabled and has no present or future earningcapacity and is, thus, incapable of being self-supporting (see Domestic Relations Law§ 236 [B] [9] [b]; Wheeler vWheeler, 12 AD3d 982, 984 [2004]; Shai v Shai, 301 AD2d 461, 462 [2003];Mazzone v Mazzone, 290 AD2d 495, 496 [2002]; Sass v Sass, 276 AD2d 42, 45[2000]; Dunnan v Dunnan, 261 AD2d 195, [*2]196[1999]; Klotz v Klotz, 150 AD2d 308, 309 [1989]). However, under the circumstances ofthis case, the Family Court should have awarded the mother maintenance only until she attainsthe age of 62, and can supplement her Social Security disability benefits and the payments she isreceiving under a long-term disability insurance policy with partial Social Security retirementbenefits (see Penna v Penna, 29AD3d 970, 972 [2006]).
The Family Court also properly applied the statutory percentage of 17% to determine thefather's child support obligation for the parties' remaining unemancipated child (seeDomestic Relations Law § 240 [1-b] [b] [3] [i]; Bogannam v Bogannam, 60 AD3d 985, 986 [2009]; Levy v Levy, 39 AD3d 487, 488[2007]; Lee v Lee, 18 AD3d508, 511 [2005]). However, the Family Court erred in failing to deduct the annual sum itrequired the father to pay in maintenance in calculating his child support obligation (see Leev Lee, 18 AD3d at 510; see alsoMcLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]; Wallach v Wallach, 37 AD3d 707,708 [2007]; Navin v Navin, 22AD3d 474, 475 [2005]). With the appropriate deduction, the father is obligated to pay themother child support in the sum of $659.76 per week.
Considering all of the facts and circumstances of this case, including the mother's inability towork, the Family Court providently exercised its discretion in granting the mother's motion foran award of an attorney's fee in the sum of $46,490.20 (see Matter of Abidi v Antohi, 64 AD3d 772, 774 [2009]; Levy v Levy, 4 AD3d 398[2004]). The fact that the mother has some assets does not disqualify her from an award ofcounsel fees (see Bogannam v Bogannam, 60 AD3d at 986-987; Grassi v Grassi, 35 AD3d 357,358 [2006]; Gallousis v Gallousis, 303 AD2d 363, 364 [2003]).
The father's remaining contentions are without merit. Skelos, J.P., Eng, Hall and Lott, JJ.,concur.