| Martin v Martin |
| 2014 NY Slip Op 02169 [115 AD3d 1315] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| Derek Martin, Appellant-Respondent, v Colleen Martin,Respondent-Appellant. |
—[*1] Mattar, D'Agostino & Gottlieb, LLP, Buffalo (Diana Cavall of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Erie County (HenryJ. Nowak, Jr., J.), entered December 20, 2012 in a divorce action. The judgment, interalia, awarded defendant maintenance and child support.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by providing that plaintiff's net income is $953,600.93 and that the combinedparental income is $983,792.93 and by providing in the fourth decretal paragraph thatthere shall be an adjustment of child support upon the termination of plaintiff'smaintenance obligation and as modified the judgment is affirmed without costs and thematter is remitted to Supreme Court, Erie County, to determine the amount of thatadjustment in accordance with the following memorandum: Plaintiff appeals anddefendant cross-appeals from a judgment of divorce that, inter alia, directed plaintiff topay maintenance and child support and denied defendant's request for a directiverequiring that plaintiff post security pursuant to Domestic Relations Law § 243.Contrary to plaintiff's contention, the maintenance award is not excessive either in itsamount or duration. "Although '[a]s a general rule, the amount and duration ofmaintenance are matters committed to the sound discretion of the trial court,. . . the authority of this Court in determining issues of maintenance is asbroad as that of [Supreme Court]' " (Knope v Knope, 103 AD3d 1256, 1257 [2013]). There isno abuse of discretion here (seeGately v Gately, 113 AD3d 1093, 1093 [2014]), and we decline to substitute ourdiscretion for that of the court (cf. Knope, 103 AD3d at 1257).
Turning to the issue of child support, we conclude that the court erred in itscalculation of the combined parental income (see Domestic Relations Law§ 240 [1-b] [c] [1]), and we therefore modify the judgment by providing thatplaintiff's net income is $953,600.93 and that the combined parental income is$983,792.93. Contrary to plaintiff's further contention, the record establishes that thecourt articulated a proper basis for applying the Child Support Standards Act to thecombined parental income in excess of the statutory cap (see § 240 [1-b][c] [2], [3]; Wideman vWideman, 38 AD3d 1318, 1319 [2007]; Corasanti v Corasanti, 296AD2d 831, 831 [2002]). We also conclude, however, that the court erred in failing toorder that child support be adjusted upon the termination of maintenance, pursuant toDomestic Relations Law § 240 (1-b) (b) (5) (vii) (C) (see Ripka v Ripka, 77 AD3d1384, 1386 [2010];Schiffer v Schiffer, 21 AD3d 889, 890-891 [2005]). We therefore furthermodify the judgment by providing in the fourth decretal paragraph that there shall be anadjustment of child support upon the termination of plaintiff's maintenance obligation todefendant, and we remit the matter to Supreme Court to determine, following a hearing ifnecessary, the proper amount of that adjustment (see Ripka, 77 AD3d at 1386).Contrary to plaintiff's contention, the court properly required him to maintain a policy oflife insurance to secure his child support and maintenance obligations (see§ 236 [B] [8] [a]; Gately, 113 AD3d at 1094).
With respect to defendant's cross appeal, we conclude that the court properly refusedto require plaintiff to post security (see Domestic Relations Law § 243; cf. Brinckerhoff vBrinckerhoff, 53 AD3d 592, 593 [2008]). Present—Smith, J.P., Fahey,Carni, Sconiers and Valentino, JJ.