| Smith v Smith |
| 2010 NY Slip Op 09654 [79 AD3d 1643] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Sandra J. Smith, Respondent-Appellant, v Charles D.Smith, Appellant-Respondent. |
—[*1] Sacca & Sacca, Lockport (James P. Renda of counsel), for plaintiff-respondent-appellant. Alvin M. Greene, Attorney for the Children, Buffalo, for Steven S., Lucas S. and AaronS.
Appeal and cross appeal from a judgment of the Supreme Court, Niagara County (Ralph A.Boniello, III, J.), entered July 9, 2009 in a divorce action. The judgment, among other things,determined the issues of equitable distribution of the marital assets, support and attorney's fees.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the duration of maintenance to nine years from the date on which the action wascommenced and as modified the judgment is affirmed without costs.
Memorandum: On appeal from the judgment in this divorce action, defendant contends thatSupreme Court abused its discretion in awarding maintenance to plaintiff "in the sum of $900 perweek for a period of [16] years, or until [p]laintiff's death, remarriage, or upon her habitualco-habitation with an unrelated male . . . or upon the [d]efendant's retirement at orafter age 64, whichever first occurs." We agree. Although the court has broad discretion in fixingthe amount and duration of a maintenance award (see Boughton v Boughton, 239 AD2d935 [1997]), "the authority of this Court [in determining questions of maintenance] is as broad asthat of the trial court" (Marino v Marino, 229 AD2d 971, 972 [1996]). In view of therelevant statutory factors, i.e., the almost 23-year duration of the marriage, plaintiff's age, goodhealth, high school education and limited work experience, the disparity in income between theparties and the ages of the children presently in plaintiff's home (see Domestic RelationsLaw § 236 [B] [6] [a]), we modify the judgment by reducing the duration of maintenanceto nine years from the date on which the action was commenced (see Burroughs vBurroughs, 269 AD2d 765 [2000]).
We reject defendant's further contention that the court abused its discretion in awardingexclusive use and occupancy of the marital residence to plaintiff until the youngest child turns18, graduates high school or becomes emancipated. " 'Courts now express a preference forallowing a custodial parent to remain in the marital residence until the youngest child becomes18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of[*2]maintaining the marital residence, or either spouse is inimmediate need of his or her share of the sale proceeds' " (Stacey v Stacey, 52 AD3d 1219, 1221 [2008]; see Nissen v Nissen, 17 AD3d819, 820 [2005]; Nolan v Nolan, 215 AD2d 795 [1995]). In light of the fact that theyoungest child is now 14 years old, we see no reason to disturb the court's determinationallowing plaintiff to remain in the marital residence for no longer than four additional years.
Contrary to defendant's contention, the award of attorney's fees to plaintiff was not "grosslyexcessive." The court properly "review[ed] the financial circumstances of both parties togetherwith all the other circumstances of the case, . . . includ[ing] the relative merit of theparties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Moreover,the court properly considered defendant's obstructionist conduct, which unnecessarily delayed theproceedings and increased the legal fees incurred by plaintiff (see Johnson v Chapin, 49 AD3d 348, 361 [2008], mod on othergrounds 12 NY3d 461 [2009], rearg denied 13 NY3d 888 [2009]). We haveconsidered defendant's remaining contentions and conclude that they are without merit.Present—Centra, J.P., Carni, Sconiers and Pine, JJ.