| Myers v Myers |
| 2011 NY Slip Op 06791 [87 AD3d 1393] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| James R. Myers, Appellant, v Diane C. Myers, Respondent. |
—[*1] Michael A. Rosenhouse, Rochester, for defendant-respondent.
Appeal from a judgment of the Supreme Court, Ontario County (Frederick G. Reed, A.J.),entered March 29, 2010 in a divorce action. The judgment, among other things, awardeddefendant spousal maintenance in the amount of $1,000 per month for a period of seven years.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the ninth decretal paragraph and as modified the judgment is affirmed without costs,and the matter is remitted to Supreme Court, Ontario County, for further proceedings inaccordance with the following memorandum: Plaintiff husband contends on appeal in thisdivorce action that Supreme Court erred in awarding maintenance to defendant wife. We note atthe outset that the husband's notice of appeal recites that he is appealing from a portion of thedecision of the Special Referee incorporated in a "Decree of Divorce." Although the husbandinstead should have taken his appeal from the judgment of divorce, in the exercise of ourdiscretion we treat the notice of appeal as valid and deem the appeal as taken from the judgment(see CPLR 5520 [c]; Francis vFrancis, 72 AD3d 1594, 1595 [2010]).
We conclude that the court erred in awarding maintenance without setting forth all relevantfactors enumerated in Domestic Relations Law § 236 (B) (6) (a) considered by the court inawarding such maintenance and the reasons for its decision (see § 236 [B] [6][b]; Hartog v Hartog, 85 NY2d 36, 51-52 [1995]; Mayle v Mayle, 299 AD2d 869[2002]). In particular, although the court granted the wife a substantial distributive award, we areunable to discern from the record whether the court considered that award in determining theamount and duration of maintenance (see § 236 [B] [6] [a] [1]; Reed v Reed, 55 AD3d 1249, 1251[2008]). Likewise, despite evidence that the wife had a degree in accounting, marketable skillsand an extensive employment history, the court failed to set forth a determination whether thewife was or could be self-supporting (see § 236 [B] [6] [a] [4]; see generallyReed, 55 AD3d at 1251; Lo Maglio v Lo Maglio, 273 AD2d 823, 824 [2000],appeal dismissed 95 NY2d 926 [2000]). Although there was also conflicting evidencepresented on the issue whether the wife contributed to the household as "a spouse, parent, wageearner and homemaker" (§ 236 [B] [6] [a] [8]), the court failed to make any factual orcredibility determinations concerning that issue. Indeed, the court failed to provide any reason forthe amount and duration of maintenance awarded, but merely set forth the ages, health andincomes of the parties (see § 236 [B] [6] [b]; Hartog, 85 NY2d at 51).Based on the foregoing, we are [*2]unable to determine whetherthe amount and duration of the maintenance awarded " 'reflects an appropriate balancing of [thewife's] needs and [the husband's] ability to pay' " (Burns v Burns, 70 AD3d 1501, 1503 [2010]). We therefore modifythe judgment by vacating the amount awarded for maintenance, and we remit the matter toSupreme Court to determine the amount and duration of maintenance, if any, after setting forthall relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (a) that itconsidered and "the reasons for its decision" (§ 236 [B] [6] [b]).
We also agree with the husband that the court erred in awarding the wife retroactivemaintenance without providing him with a credit for the carrying costs he paid on the maritalhome during the pendency of the action (see Skladanek v Skladanek, 60 AD3d 1035, 1037 [2009];Southwick v Southwick, 214 AD2d 987, 987-988 [1995]; Petrie v Petrie, 124AD2d 449, 451 [1986], lv dismissed 69 NY2d 1038 [1987]), and we therefore furthermodify the judgment accordingly. Thus, upon remittal, the court must also determine the amountof those payments made during the pendency of the action and the amount of retroactivemaintenance, if any, to be awarded to the wife (see Petrie, 124 AD2d at 451).Present—Centra, J.P., Fahey, Sconiers, Green and Martoche, JJ.