| Knope v Knope |
| 2013 NY Slip Op 00860 [103 AD3d 1256] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| Olga Knope, Respondent, v Gerard S. Knope,Appellant. |
—[*1] Alexander Korotkin, Rochester, for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Richard A.Dollinger, A.J.), entered March 17, 2011. The judgment, inter alia, awarded maintenanceto plaintiff.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts and the law by providing that maintenance shall terminate six years from thedate on which the action was commenced and as modified the judgment is affirmedwithout costs.
Memorandum: Defendant husband appeals from a judgment of divorce that, interalia, incorporated the decision and order of the Matrimonial Referee (Referee) appointedto hear and determine the issues concerning the grounds for the divorce and spousalmaintenance. Defendant contends that Supreme Court erred in awarding nondurationalmaintenance to plaintiff wife. We agree.
Although "[a]s a general rule, the amount and duration of maintenance are matterscommitted to the sound discretion of the trial court" (Boughton v Boughton, 239AD2d 935, 935 [1997]), "the authority of this Court in determining issues ofmaintenance is as broad as that of the trial court" (Reed v Reed, 55 AD3d 1249, 1251 [2008]). Here, weconclude that the record does not support an award of nondurational maintenance toplaintiff. Specifically, the record does not support the Referee's finding that defendantsigned an Immigration and Nationalization Form I-864 (I-864 affidavit) providing that"he would be completely liable for the plaintiff's support once she had obtained a visawhich allowed her to enter the United States." Although at the hearing before the Refereedefendant admitted signing an affidavit of support in connection with plaintiff's visaapplication, he explicitly denied that it was an I-864 affidavit, as suggested by plaintiff.Moreover, plaintiff never produced a signed affidavit setting forth the nature ofdefendant's obligation, and thus we conclude that the record does not support theReferee's finding that defendant signed an I-864 affidavit.
Additionally, the record does not support the Referee's finding that plaintiff was"unable to work to support herself financially," now or at any point in the future. At thehearing, plaintiff testified that she suffered from certain medical conditions thatprevented her from being able to work or to seek job training in the United States,including dizziness, depression, stress, constant [*2]tinnitus, and a complete loss of hearing in one ear.Although a person seeking maintenance may submit "general testimony" regarding amedical condition where the effect of that condition on the person's "ability to work isreadily apparent without the necessity of expert testimony" (Battinelli vBattinelli, 174 AD2d 503, 504 [1991]), that is not the case here. Thus, plaintiff wasrequired to submit medical records or expert testimony, which she failed to do. Instead,plaintiff offered a letter from the Social Security Administration that referenced anotherletter allegedly declaring that plaintiff would have been eligible for disability benefits ifshe was a United States citizen. "[A] decision of the Social Security Administration [mayserve] as some evidence" of a disability, but it is not prima facie evidence thereof(Matter of Frenke v Frenke, 267 AD2d 238, 238 [1999]). Here, there is nodecision in the record, and the letter submitted by plaintiff only references a decision.That letter did not indicate the nature, extent or permanence of plaintiff's disability, or thebasis for the alleged determination by the Social Security Administration that plaintiffwas disabled. Further, the Referee's finding that plaintiff's inability to speak Englishprevented her from seeking employment is belied by plaintiff's testimony, much of whichwas in English despite the instructions of the Referee that she testify in Russian and usean interpreter. Thus, based on the statutory factors, including the short duration of themarriage and plaintiff's age, education and job skills, we conclude that plaintiff is entitledto maintenance for a period of six years (see Domestic Relations Law §236 [B] [6] [a]). We therefore modify the judgment accordingly.
We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.