| Dochter v Dochter |
| 2014 NY Slip Op 03975 [118 AD3d 665] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| Roberta Dochter, Respondent-Appellant, v EricDochter,Appellant-Respondent. |
Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Rosalia Baiamonte of counsel),for appellant-respondent.
Maria Schwartz, Garden City, N.Y. (Steven Cohn, P.C., of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Nassau County (O'Connell,J.H.O.), entered June 18, 2012, as, upon a decision dated December 19, 2011, made aftera nonjury trial, (a) awarded the plaintiff durational maintenance in the sum of $5,000 permonth until the sale of the marital residence upon the high school graduation of theparties' younger son in June 2014, and $6,500 per month thereafter, for a total period of83
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
The Supreme Court providently exercised its discretion in imputing income to thedefendant for the purpose of calculating his child support and maintenance obligations(see Domestic Relations Law § 240 [1-b] [b] [5] [iv]; Bogannam v Bogannam, 60AD3d 985, 986 [2009]; Ivani v Ivani, 303 AD2d 639 [2003]; Rocanellov Rocanello, 254 AD2d 269 [1998]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in awarding the plaintiff durational maintenance in the sum of $5,000 permonth until the parties' younger son graduates from high school in June 2014 and themarital residence is to be sold, and $6,500 thereafter, for a total period of83
Contrary to the defendant's contention, under the circumstances of this case, the[*2]Supreme Court did not err in declining to award hima credit against the maintenance and child support awards for his payment of the carryingcosts on the marital residence until the parties' younger son graduates from high school(see Gahagan v Gahagan,76 AD3d 538, 540 [2010]; Mollon v Mollon, 282 AD2d 659, 660 [2001]).Moreover, the court did not err in failing to deduct maintenance payments from hisincome for the purpose of calculating his child support obligation (see Schmitt vSchmitt, 107 AD3d at 1530). Further, although the Supreme Court failed to make theappropriate FICA and Medicare deductions, as required by Domestic Relations Law§ 240 (1-b) (b) (5) (vii) (H), modification of the child support award is notwarranted in view of the court's calculation of the defendant's child support obligationbased entirely on the "statutory cap" of $130,000 (see Domestic Relations Law§ 240 [1-b]), and not on his total gross income as imputed by the court.
Contrary to the defendant's contention, the Supreme Court properly denied, aspremature, his request that the court allocate between the parties responsibility for thefuture college expenses of the parties' younger son (see Mejia v Mejia, 106 AD3d 786, 788 [2013]; Felix v Felix, 87 AD3d1106, 1108 [2011]; Bogannam v Bogannam, 60 AD3d at 986).
The award of reasonable counsel fees is a matter within the sound discretion of thetrial court (see Domestic Relations Law § 237 [a]; DeCabrera vCabrera-Rosete, 70 NY2d 879 [1987]). A court must consider the relative merits ofthe parties' claims and their respective financial positions (see Levy v Levy, 4 AD3d398, 398 [2004]; Merzon v Merzon, 210 AD2d 462, 464 [1994]). Contraryto the parties' respective contentions, the Supreme Court providently exercised itsdiscretion in awarding the wife the sum of $26,500 in counsel fees (see Davydova v Sasonov, 109AD3d 955, 958 [2013]; Schek v Schek, 49 AD3d 625, 626 [2008]).
The plaintiff's remaining contention is without merit. Dillon, J.P., Balkin, Miller andMaltese, JJ., concur.