| Noto v Noto |
| 2012 NY Slip Op 03154 [94 AD3d 1069] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Anthony Noto, Appellant, v Adela Noto,Respondent. |
—[*1] Scott J. Gilmore, Massapequa Park, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Nassau County (Bruno, J.), enteredDecember 15, 2010, as, upon an amended decision of the same court dated August 6, 2010, madeafter a nonjury trial, (1) awarded the defendant maintenance in the sum of $1,000 per month for36 months, (2) directed him to pay for the cost of the defendant's health insurance until shequalifies for Medicare, remarries, or receives health insurance through her employment, or uponhis death, whichever comes first, and (3) failed to direct the defendant to share equally in thecarrying charges on the marital residences until their sale.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof directing the plaintiff to pay the cost of the defendant's healthinsurance until she qualifies for Medicare, remarries, or receives health insurance through heremployment, or upon the plaintiff's death, whichever comes first, and substituting therefor aprovision directing the plaintiff to pay the cost of the defendant's health insurance for a period of36 months, or until she remarries or receives health insurance through her employment, or uponthe plaintiff's death, whichever comes first; as so modified, the judgment is affirmed insofar asappealed from, with costs to the defendant.
The parties were married for approximately eight years. They have no children together.During the marriage, the plaintiff, as the president and owner of a demolition company, earned anannual salary of approximately $88,400, along with considerable benefits. The defendant workedbriefly during the early years of the marriage earning minimum wage. In 2004, the partiespurchased a home together in Massapequa and in 2008, they purchased an investment property inDeer Park.
"[T]he amount and duration of maintenance is [a matter] committed to the sound discretionof the trial court, and every case must be determined on its own unique facts" (Bladt v Bladt, 72 AD3d 717, 718[2010] [internal quotation marks omitted]; see O'Shea v O'Shea, 93 NY2d 187, 193[1999]; Xikis v Xikis, 43 AD3d1040, 1042 [2007]; Mora vMora, 39 AD3d 829, 830 [2007]). The Supreme Court had before it sufficient evidenceregarding, among other things, the length of the marriage, the pre-divorce standard of living ofthe parties, the age and health of the parties, the present and future earning capacity of the parties,and the ability of the defendant to become self-supporting, for the [*2]court to determine the defendant's request for maintenance(see Domestic Relations Law § 236 [B] [6] [a]; Bladt v Bladt, 72 AD3d at718; Raynor v Raynor, 68 AD3d835, 837 [2009]). Contrary to the plaintiff's contention, the Supreme Court providentlyexercised its discretion in awarding to the defendant maintenance in the sum of $1,000 per monthfor a 36-month period.
However, the Supreme Court improvidently exercised its discretion in directing the plaintiffto pay for the defendant's health insurance until she qualifies for Medicare, remarries, or receiveshealth insurance through her employment, or upon the plaintiff's death, whichever comes first. Inlight of the award of limited maintenance, the court should have determined that the plaintiff'sobligation to pay for the defendant's health insurance should also run for a 36-month period, oruntil such time as the defendant remarries or receives health insurance through her employment,or upon the plaintiff's death, whichever comes first (see Domestic Relations Law §236 [B] [8] [a]; Kelly v Kelly, 69AD3d 577, 579 [2010]).
The defendant's contention that the Supreme Court should have awarded her maintenance fora duration longer than 36 months is not properly before this Court on appeal, as she did notcross-appeal from the judgment (seeManning v Manning, 82 AD3d 1057, 1059 [2011]; Kerrigan v Kerrigan, 71 AD3d 737, 738-739 [2010]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Angiolillo, Belen andCohen, JJ., concur.