| Marley v Marley |
| 2013 NY Slip Op 03642 [106 AD3d 961] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Bruce Marley, Respondent, v Barbara Marley,Appellant. |
—[*1] Barbara J. Strauss, Goshen, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from stated portions of an amended judgment of the Supreme Court, OrangeCounty (Marx, J.), dated February 14, 2011, which, upon a decision of the same court(Onofry, J.), dated January 15, 2011, made after a nonjury trial, inter alia, directed theplaintiff to pay her maintenance in the sum of only $500 per week until the earlier of herattaining the age of 62, her retirement, her remarriage, or her death.
Ordered that the amended judgment is modified, on the facts and in the exercise ofdiscretion, by deleting the provision thereof directing the plaintiff to pay the defendantmaintenance in the sum of $500 per week until the earlier of the defendant's attaining theage of 62, her retirement, her remarriage, or her death, and substituting therefor aprovision directing the plaintiff to pay the defendant maintenance in the sum of $500 perweek until the earlier of the defendant's attaining the age of 66, the plaintiff's retirement,the defendant's remarriage, or the defendant's death; as so modified, the amendedjudgment is affirmed insofar as appealed from, with costs to the defendant.
"[T]he 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"(Siskind v Siskind, 89AD3d 832, 833 [2011] [internal quotation marks omitted]). In determining theamount and duration of an award of maintenance, the Supreme Court "must consider thefactors enumerated in Domestic Relations Law § 236 (B) (6) (a), which include thepredivorce standard of living of the parties, the income and property of the parties, theequitable distribution of marital property, the duration of the marriage, the present andfuture earning capacity of the parties, the ability of the party seeking maintenance to beself-supporting, and the reduced or lost earning capacity of the party seekingmaintenance" (Giokas vGiokas, 73 AD3d 688, 689 [2010]; see Hartog v Hartog, 85 NY2d 36,51-52 [1995]; Siskind v Siskind, 89 AD3d at 833; Litvak v Litvak, 63 AD3d691 [2009]).
Contrary to the defendant's contention, the amount of maintenance awarded by theSupreme Court was consistent with the purpose and function of maintenance consideringher education, ability to be self-supporting, good health, and lack of child-rearingresponsibilities. However, in light of each party's age, as well as their respective financialcircumstances, the Supreme Court should not have permitted maintenance payments toend upon the defendant's [*2]attaining the age of 62 orupon the defendant's retirement. Rather, the Supreme Court should have awarded thedefendant maintenance until the earlier of the defendant's attaining the age of 66, theplaintiff's retirement, the defendant's remarriage, or the defendant's death (see Giokasv Giokas, 73 AD3d at 689; Hamroff v Hamroff, 35 AD3d 365 [2006]; Marion vMarion, 300 AD2d 369 [2002]; Tuszer v Tuszer, 249 AD2d 535 [1998];see also Taylor v Taylor, 300 AD2d 298 [2002]).
The defendant's remaining contentions are either unpreserved for appellate review,not properly before this Court, or without merit. Mastro, J.P., Leventhal, Sgroi andMiller, JJ., concur.