| Kaufman v Kaufman |
| 2013 NY Slip Op 00459 [102 AD3d 925] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Jacquelyn Kaufman, Respondent, v StevenKaufman, Respondent. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Orange County (Ritter, J.),dated December 22, 2010, as, upon a decision of the same court dated December 2, 2010,made after a nonjury trial, awarded the plaintiff maintenance in the sum of $577 perweek until she reaches the age of 66, remarries, or dies, whichever occurs first; directedhim to continue the plaintiff's health insurance coverage during the period he is obligatedto pay maintenance, or until the plaintiff becomes entitled to Medicare or is otherwiseinsured, whichever is sooner; directed the plaintiff to pay child support in the sum ofonly $155 per week for the period from December 2, 2010, until February 28, 2013, only$133 per week from "February 29, 2013," until July 18, 2015, and only $91 per weekfrom July 19, 2015, until July 24, 2017; failed to apportion to the plaintiff a share of thecost of uncovered health care for the parties' three unemancipated children; failed toapportion to the plaintiff a share of the cost of the children's college expenses; and, failedto apportion to the plaintiff a share of the payments toward a certain loan debt.
Ordered that the judgment is modified, on the law, by deleting the provisions thereofdirecting the plaintiff to pay child support in the sum of $155 per week for the periodfrom December 2, 2010, until February 28, 2013, $133 per week from "February 29,2013," until July 18, 2015, and $91 per week from July 19, 2015, until July 24, 2017, andsubstituting therefor provisions directing the plaintiff to pay the defendant child supportin the sum of $167.33 per week for the period from December 2, 2010, until February 28,2013, $144.25 per week for the period from March 1, 2013, until July 18, 2015, and$98.08 per week from July 19, 2015, until July 24, 2017; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements.
"The 'amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court, and every case must be determined on its own unique facts' "(Morales v Inzerra, 98AD3d 484, 484 [2012], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]). "Thecourt may order maintenance in such amount as justice requires, considering, inter alia,the standard of living of the parties during the marriage, the income and property of theparties, the distribution of marital property, the duration of the marriage, the health of theparties, the present and future earning capacity of both parties, the ability of the partyseeking maintenance to become self-supporting, and the reduced or lost lifetime earningcapacity of the party seeking maintenance" (Kret v Kret, 222 AD2d 412, 412[1995]; see Scher v Scher,91 AD3d 842, 847 [2012]). Here, the Supreme Court providently exercised itsdiscretion in awarding the plaintiff maintenance in the sum of $577 per week until she[*2]reaches the age of 66, remarries, or dies, whicheveroccurs first.
In calculating the plaintiff's share of child support under the Child Support StandardsAct (Domestic Relations Law § 240 [1-b]), the Supreme Court first deducted acertain amount from her income for Federal Insurance Contributions Act (26 USC subtitC, ch 21; hereinafter FICA) taxes. However, in this case, the plaintiff's sole source ofincome is the spousal maintenance to be paid to her by the defendant. Since FICA taxesshould be deducted only from income upon which FICA taxes are "actually paid" prior toapplying the provisions of Domestic Relations Law § 240 (1-b) (c) (DomesticRelations Law § 240 [1-b] [b] [5] [vii] [H]; see Brevilus v Brevilus, 72 AD3d 999, 1001 [2010]), andsince FICA taxes are not paid from amounts received for maintenance, the SupremeCourt's calculations were erroneous.
The defendant's remaining contentions are without merit. Mastro, J.P., Rivera,Dickerson and Lott, JJ., concur.