| Schmitt v Schmitt |
| 2013 NY Slip Op 04462 [107 AD3d 1529] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| Gerald Schmitt, Appellant, v Sandra Schmitt, Respondent.(Appeal No. 1.) |
—[*1] Mary Anne Connell, Attorney for the Child, Buffalo.
Appeal from a judgment of the Supreme Court, Erie County (John F. O'Donnell, J.),entered February 22, 2012 in a divorce action. The judgment, inter alia, directed plaintiffto pay maintenance and child support and equitably distributed marital assets.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating decretal paragraphs 5, 6, 7, and 30 and that part of decretal paragraph23 ordering that plaintiff shall be solely obligated for all debt that is held jointly by theparties, and by granting that part of the posttrial motion seeking to set aside the directioncontained in the 30th decretal paragraph of the judgment and as modified the judgment isaffirmed without costs, and the matter is remitted to the Supreme Court, Erie County, forfurther proceedings in accordance with the following memorandum: These consolidatedappeals arise from a matrimonial action. We note at the outset that, in appeal No. 1,plaintiff appeals from a judgment of divorce. That appeal also brings up for review thepropriety of the order denying plaintiff's posttrial motion to set aside certain parts of thejudgment (appeal No. 2), and thus the appeal from the order in appeal No. 2 must bedismissed (see Smith v Catholic Med. Ctr. of Brooklyn & Queens, 155 AD2d435 [1989]; see also CPLR 5501 [a] [1]).
With respect to appeal No. 1, we reject plaintiff's contention that Supreme Courterred in awarding defendant durational maintenance in the amount of $16,833.75 peryear for 10 years. The court providently exercised its discretion in making that award toallow defendant the opportunity to become self-supporting after 25 years of marriageduring which she was the stay-at-home parent (see Bogannam v Bogannam, 60 AD3d 985, 986 [2009];see generally O'Brien v O'Brien, 66 NY2d 576, 585 [1985]; Sperling vSperling, 165 AD2d 338, 340-345 [1991]). We reject plaintiff's further contentionthat the court erred in failing to subtract maintenance payments from his income for thepurpose of calculating his child support obligation. The relevant statute provides thatmaintenance paid or to be paid should be subtracted from the payor's income only where"the order or agreement provides for a specific adjustment . . . in theamount of child support payable upon the termination of alimony or maintenance"(Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). Here, the judgment doesnot provide for an automatic adjustment of child support upon the termination ofmaintenance, and such an adjustment was not warranted because plaintiff's maintenanceobligation will outlast his child support obligation (see Huber v Huber, [*2]229 AD2d 904, 905 [1996]; see also § 240[1-b] [b] [5] [vii] [C]; Kessinger v Kessinger, 202 AD2d 752, 753-754 [1994]).
We agree with plaintiff, however, that the court erred in concluding that defendantmet her burden of establishing that the parties' third eldest child was emancipated duringthe time she resided with plaintiff in 2011 (cf. Matter of Cedeno v Knowlton, 98 AD3d 1257, 1257[2012]; Matter of Gold vFisher, 59 AD3d 443, 444 [2009]). Although the child in question worked twojobs in 2010, defendant did not submit any evidence regarding the child's income in2011. Further, the fact that plaintiff paid for the subject child's rent and utility costsdemonstrates that the child was not economically independent and self-supporting(see Cedeno, 98 AD3d at 1257; Matter of Drumm v Drumm, 88 AD3d 1110, 1112-1113[2011]). Inasmuch as the record is insufficient for us to determine defendant's childsupport obligation with respect to the subject child, we modify the judgment in appealNo. 1 by vacating the fifth, sixth and seventh decretal paragraphs relating to plaintiff'schild support obligation, and we remit the matter to Supreme Court for consideration ofdefendant's child support obligation and for a recomputation of the parties' respectivechild support obligations, following a hearing if necessary (see generally Drumm,88 AD3d at 1113-1114).
We also agree with plaintiff that the court failed to set forth the statutory factors itrelied upon in allocating all of the marital debt to him. In distributing debt, a court isrequired to consider the factors set forth in Domestic Relations Law § 236 (B) (5)(d) and to state the factors that influenced its decision in accordance with section 236 (B)(5) (g) (see Vanyo v Vanyo,79 AD3d 1751, 1753 [2010]; Burns v Burns, 70 AD3d 1501, 1503 [2010]). We thusfurther modify the judgment in appeal No. 1 accordingly, and we remit the matter toSupreme Court for further consideration of that issue, including a hearing if necessary(see generally Capasso v Capasso, 119 AD2d 268, 272 [1986]).
Finally, we agree with plaintiff that the court erred in failing to afford the charginglien (see Judiciary Law § 475) of his attorney priority in plaintiff's interestin the proceeds from the sale of the marital residence over the judgment awardingdefendant attorney's fees. Although plaintiff's attorney did not timely file the retaineragreement as required by 22 NYCRR 1400.3, it is the right of the client, not theadversary spouse, to assert noncompliance with those rules as a basis for refusing to payattorney's fees (see generally Matter of Winkelman v Furey, 281 AD2d 908, 908[2001], affd 97 NY2d 711 [2002]; Petosa v Petosa, 56 AD3d 1296, 1298 [2008]; Johnner v Mims, 48 AD3d1104, 1105 [2008]). Here, the record establishes that plaintiff submitted an affidavitwaiving his attorney's compliance with that filing requirement. We therefore concludethat the court erred in determining in the context of plaintiff's posttrial motion thatplaintiff's attorney did not have a charging lien with priority from the date ofcommencement of the action (see Judiciary Law § 475). Thus, the courterred in directing plaintiff's attorney to satisfy the judgment filed on January 17, 2012with respect to the attorney's fees of defendant from plaintiff's share of the proceeds ofthe sale of the marital residence, which was held in the attorney trust account ofplaintiff's attorney. We therefore further modify the judgment in appeal No. 1 by vacatingthe 30th decretal paragraph and by granting that part of plaintiff's posttrial motionseeking to set aside the direction contained therein. Present—Centra, J.P., Fahey,Carni, Whalen and Martoche, JJ.