| St. Louis v St. Louis |
| 2011 NY Slip Op 05850 [86 AD3d 706] |
| July 7, 2011 |
| Appellate Division, Third Department |
| Todd A. St. Louis, Appellant, v Sara A. St. Louis,Respondent. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Bruce J. Wagner of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McGill, J.), entered March 8,2011 in Clinton County, ordering, among other things, plaintiff to pay certain child support andmaintenance, upon a decision of the court.
The parties married in 1994 and are the parents of three children (born in 1995, 1997 and2005). Plaintiff commenced this divorce action in June 2008 and defendant counterclaimed fordivorce. Many of the disputed issues were resolved by oral stipulation shortly before trial.Defendant was awarded legal and physical custody of the children. The parties stipulated that forpurposes of calculating child support under the Child Support Standards Act (seeDomestic Relations Law § 240 [1-b] [hereinafter CSSA]), plaintiff's income was $133,300and defendant's income was $33,500.[FN1]They further agreed that the CSSA statutory rate for three children of 29% would apply to theirentire combined income. As a result, plaintiff's biweekly child support obligation was set at$1,391 (reduced to $1,377 to reflect an offset for defendant's pro rata share of health insurance).At the time the parties' agreed to these provisions in December 2009, [*2]maintenance had not yet been resolved and they did not address theimpact of maintenance on child support, which is a statutory deduction from income under theCSSA (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]).
A trial ensued on the issue of maintenance. Defendant sought an award of $2,700 per monthfor 11 years. In January 2010, Supreme Court awarded defendant a biweekly payment of $1,200for 16 years or until plaintiff retires from his current state job, whichever occurs first. Plaintiffmade a motion to, among other things, recalculate his child support to reflect the change in hisnet CSSA income as a result of the significant maintenance award. Supreme Court denied themotion in January 2011. A judgment of divorce was entered in March 2011 granting defendant adivorce and including, among other things, the biweekly payments for child support of $1,377and maintenance of $1,200. Plaintiff appeals challenging the child support and maintenanceprovisions of the judgment.
Initially, we address defendant's argument that plaintiff is not an aggrieved party as to thepart of the judgment regarding child support since the parties stipulated to child support. A partywho consents to the terms of an order is not an aggrieved party (see Matter of Miller v Miller, 63 AD3d1323, 1324 [2009], lv dismissed 13 NY3d 781 [2009]; Matter of Geddes v Montpetit, 15AD3d 797, 797 [2005], lv dismissed 4 NY3d 869 [2005]). Although plaintiff orallystipulated to child support, he thereafter made a motion, before an order or judgment had beenentered, to modify his child support obligation upon the ground that it was not in accordance withthe CSSA. Supreme Court denied plaintiff's motion in a January 2011 order and it then set forththe terms of the oral stipulation in the subsequent March 2011 judgment. The issue ofcompliance with the CSSA was adequately raised by plaintiff's motion and he is an aggrievedparty as to Supreme Court's denial of his motion. Moreover, Supreme Court's January 2011 orderaddressing that issue was a nonfinal order that necessarily affected the ensuing divorce judgment(see CPLR 5501 [a] [1]; see generally Burke v Crosson, 85 NY2d 10, 15-16[1995]). Defendant's contention that his child support obligation deviated from the CSSAwithout including the mandatory opt-out recitals is properly before us, and we turn next to themerits of that issue.
"If [a] stipulation deviates from the presumptively correct amount that would have beenawarded under the CSSA, it must . . . specify what that amount would have beenand the reason or reasons for the deviation therefrom" (McCarthy v McCarthy, 77 AD3d 1119, 1120 [2010]; seeDomestic Relations Law § 240 [1-b] [h]; Matter of Usenza v Swift, 52 AD3d 876, 877-878 [2008];Fessenden v Fessenden, 307 AD2d 444, 445 [2003]). Although a simple miscalculationmay not invalidate an otherwise enforceable stipulation (see Sullivan v Sullivan, 46 AD3d 1195, 1197 [2007]) and anagreement to apply the applicable statutory percentage to all income is not considered a deviation(see Matter of Wolf v Wolf, 293 AD2d 811, 813 [2002]), nonetheless, a stipulation thatfails to deduct maintenance as provided in Domestic Relations Law § 240 (1-b) (b) (5)(vii) (C) and sets forth no explanation for this failure is invalid (see Cheruvu v Cheruvu, 59 AD3d876, 879 [2009]). Here, the parties entered into the child support stipulation one day before atrial commenced regarding maintenance. Although the amount of maintenance was yet to bedetermined, it is clear that the parties understood that defendant would be receiving somemaintenance. However, the stipulation makes no mention of maintenance and sets forth noreason for deviating from the statutory deduction for maintenance.
Defendant contends that this omission can be overlooked since Supreme Court ultimatelyissued a judgment regarding maintenance that did not provide for a specific [*3]adjustment in child support upon the termination of maintenance(see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). This contention isunpersuasive since Supreme Court's decision does not serve to retroactively correct a stipulationthat was silent as to an important deviation. Moreover, where, as here, an appeal is taken from adivorce judgment that omits an adjustment for child support upon the termination ofmaintenance, such an omission is generally considered error (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]; Mairs v Mairs, 61 AD3d 1204,1210 n 9 [2009]; Burtchaell vBurtchaell, 42 AD3d 783, 785 [2007]; Navin v Navin, 22 AD3d 474, 475 [2005]; cf. Smith v Smith, 1 AD3d 870,872-873 [2003]; but cf. Matter of Baker v Baker, 291 AD2d 751, 752-753 [2002][omission given effect in subsequent child support modification proceeding where no appealtaken from judgment containing the omission]). Since the stipulation deviated from the CSSAand no reason is set forth in the record for doing so, the stipulation as to child support must be setaside and the case remitted for a redetermination of child support (see Cheruvu vCheruvu, 59 AD3d at 879).
Next, we consider maintenance. Although the amount and duration of maintenance istypically left to the discretion of Supreme Court, we find the duration excessive in this case.Maintenance is determined "based upon the enumerated factors set forth in Domestic RelationsLaw § 236 (B) (6) (a), as well as the predivorce standard of living of the recipient spouse"(Ndulo v Ndulo, 66 AD3d1263, 1264 [2009]; see Hartog v Hartog, 85 NY2d 36, 50-51 [1995]). A primarygoal of maintenance is to provide a financial base while the recipient gains the ability to becomeself-sufficient (see Lorenz v Lorenz,63 AD3d 1361, 1362-1363 [2009]; Quinn v Quinn, 61 AD3d 1067, 1071 [2009]; Dowd vDowd, 58 AD3d 1057, 1058 [2009]; Carman v Carman, 22 AD3d 1004, 1009 [2005]).
Here, the record reflects that the parties' marital standard of living essentially exceeded theirincome and, accordingly, both parties will have to adjust to a more prudent standard. Plaintiffwas 42 years old and defendant was 36 at the time of the divorce. Defendant worked full or parttime throughout the marriage of 16 years. She is an experienced radiology technician, havingworked both for a hospital and currently employed by a physician in private practice. Herpart-time earnings were $33,500. She expressed a desire to work full time once her youngestchild started school, which presumably has now occurred since the child turns six this year.Although she indicated that she has some health issues, there was no medical evidence indicatingthat these issues affected her ability to work or otherwise carry on her daily activities. Defendantrequested maintenance equivalent to $32,400 annually and she was awarded close to that amountat $31,200. However, she was awarded maintenance for a duration considerably longer than shewas seeking. Upon our review of the statutory factors and the evidence in the record, we find thatthe duration of maintenance was excessive under the circumstances and should be reduced from16 years to 11 years as defendant originally requested.[FN2] Further, the judgment must be modified to provide that child support will be adjusted upon thetermination of maintenance.
Peters, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law and the [*4]facts, without costs, by reversingso much thereof as awarded child support and as ordered plaintiff to pay maintenance for 16years; plaintiff is to pay maintenance for 11 years, upon the termination of maintenance, childsupport shall be adjusted, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision and, pending said proceedings, the child support provisionof the judgment appealed from shall remain in effect as a temporary judgment; and, as somodified, affirmed.
Footnote 1: After deducting FederalInsurance Contributions Act taxes, their net CSSA incomes were $124,746 and $30,937,reflecting a proportionate share of 80.1% for plaintiff and 19.9% for defendant.
Footnote 2: We are not modifying thealternative for ending maintenance provided by Supreme Court in the event plaintiff retiresearlier from his job with the State Police.