| Jaramillo v Jaramillo |
| 2013 NY Slip Op 05300 [108 AD3d 651] |
| July 17, 2013 |
| Appellate Division, Second Department |
| Jennifer Jaramillo, Respondent, v John Jaramillo,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Richmond County (deGrimston, Ct. Atty. Ref.), dated February 29, 2012, which, upon a decision of the samecourt dated November 16, 2011, made after a nonjury trial, inter alia, directed him to paymaintenance to the plaintiff in the sum of $2,000 per month for a period of six years andto pay the sum of $7,500 toward the plaintiff's counsel fees.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,by deleting the provision thereof directing the defendant to pay maintenance to theplaintiff in the sum of $2,000 per month; as so modified, the judgment is affirmed insofaras appealed from, without costs or disbursements, and the matter is remitted to theSupreme Court, Richmond County, for a recalculation of the amount of the defendant'smaintenance obligation; in the interim, the defendant shall pay maintenance to theplaintiff in the sum of $500 per month.
"[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 unique facts" (Meccariello v Meccariello, 46AD3d 640, 641 [2007]; seeWilliams v Williams, 102 AD3d 957 [2013]; Kaufman v Kaufman, 102AD3d 925 [2013]). "The court may order maintenance in such amount as justicerequires, considering, inter alia, the standard of living of the parties during themarriage, the income and property of the parties, the distribution of marital property, theduration of the marriage, the health of the parties, the present and future earning capacityof both parties, the ability of the party seeking maintenance to become self-supporting,and the reduced or lost lifetime earning capacity of the party seeking maintenance"(Kret v Kret, 222 AD2d 412 [1995]; see Domestic Relations Law§ 236 [B] [6] [a]; McLoughlin v McLoughlin, 74 AD3d 911, 913 [2010];Kaufman v Kaufman, 102 AD3d at 926).
Here, the Supreme Court found that the defendant's net income was $62,567annually, or $5,213.92 each month. After paying his monthly expenses, which the courtfound to be $3,818.80, the defendant would be left with $1,395.12 per month with whichto pay maintenance and his child support obligation of $235.34 per week. "Recognizingthe fact that the need of the defendant to maintain a separate household and have moneyto live on after support payments are made must be taken into account by the awardingcourt" (Keehn v Keehn, 137 AD2d 493, 495 [1988]), we [*2]conclude that the court improvidently exercised itsdiscretion in directing the defendant to pay maintenance to the plaintiff in the sum of$2,000 per month. Accordingly, we remit the matter to the Supreme Court, RichmondCounty, for a recalculation of the amount of the plaintiff's maintenance award. In theinterim, the defendant shall pay maintenance to the plaintiff in the sum of $500 permonth. Our directive should not be taken as an opinion as to an appropriate award ofmaintenance.
However, contrary to the defendant's contention, the Supreme Court providentlyexercised its discretion in determining the duration of the maintenance award. "Spousalsupport should be awarded for a duration that would provide the recipient with enoughtime to become self-supporting" (Bains v Bains, 308 AD2d 557, 559 [2003]).Here, considering the relevant factors, including the plaintiff's age, education, andemployment history, an award of maintenance over a period of six years should affordthe plaintiff a sufficient opportunity to become self-supporting (see Jones v Jones, 92 AD3d845 [2012]; DiBlasi vDiBlasi, 48 AD3d 403 [2008]; Walter v Walter, 38 AD3d 763 [2007]).
Further, considering the significant disparity in the parties' incomes, the SupremeCourt did not improvidently exercise its discretion in directing the defendant to pay thesum of $7,500 toward the plaintiff's counsel fees (see Chesner v Chesner, 95 AD3d 1252 [2012]; Cohen v Cohen, 73 AD3d832 [2010]).
The defendant's remaining contention is without merit. Dickerson, J.P., Roman,Miller and Hinds-Radix, JJ., concur.