| Salvato v Salvato |
| 2011 NY Slip Op 08399 [89 AD3d 1509] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| Karen L. Salvato, Respondent, v Larry P. Salvato,Appellant. |
—[*1] Handelman, Witkowicz & Levitsky, Rochester (Steven M. Witkowicz of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Elma A. Bellini, J.), enteredNovember 12, 2010 in a divorce action. The judgment, inter alia, granted plaintiff a divorce.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from a judgment of divorce that, inter alia, directed him to paymaintenance and child support. Contrary to defendant's contention, Supreme Court properlydetermined the amount of child support. In determining a parent's income for purposes of child support,the court shall deduct from income any maintenance paid to a spouse "provided the order or agreementprovides for a specific adjustment . . . in the amount of child support payable upon thetermination of . . . maintenance to such spouse" (Domestic Relations Law § 240[1-b] [b] [5] [vii] [C]). Here, there was no provision for an adjustment of child support upon thetermination of maintenance, and thus there was no basis for the court to deduct maintenance fromdefendant's income in determining the amount of child support (cf. Schiffer v Schiffer, 21 AD3d 889, 890-891 [2005]; Kessinger vKessinger, 202 AD2d 752, 753-754 [1994]). We further conclude that, although defendanttestified at trial that his current earnings were less than his earnings from the previous year, the court didnot abuse its discretion in using his income from the previous year to calculate child support. Defendantfailed to provide a consistent explanation for the decrease in his income from his employment at hisfamily's business.
Contrary to defendant's further contention, the court did not abuse its discretion in awardingmaintenance to plaintiff of $1,000 a month for a period of four years (see McCarthy v McCarthy, 57 AD3d1481, 1481-1482 [2008]). "[T]he amount and duration of maintenance are matters committed tothe sound discretion of the trial court" (Boughton v Boughton, 239 AD2d 935, 935 [1997]).Here, the court considered all the factors set forth in Domestic Relations Law § 236 (B) (6) (a),and properly balanced plaintiff's reasonable needs against defendant's ability to pay (see Torgersenv Torgersen, 188 AD2d 1023, 1024 [1992], lv denied 81 NY2d 709 [1993]).
The court properly awarded plaintiff a credit for her separate property interest in the [*2]marital residence in the amount of $25,000. "It is well settled that aspouse is entitled to a credit for his or her contribution of separate property toward the purchase of themarital residence" (Juhasz v Juhasz, 59AD3d 1023, 1024 [2009], lv dismissed 12 NY3d 848 [2009]; see Hendershott vHendershott, 299 AD2d 880, 880-881 [2002]; Judson v Judson, 255 AD2d 656, 657[1998]). The uncontroverted evidence established that plaintiff used $25,000 that she received from hermother as a down payment for the marital residence. We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Scudder, P.J., Centra, Faheyand Peradotto, JJ.