| Merrick v Merrick |
| 2015 NY Slip Op 07481 [132 AD3d 742] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| David Merrick, Respondent, v DeborahMerrick, Appellant. |
Annette G. Hasapidis, South Salem, N.Y., for appellant.
Robert G. Smith, PLLC, New York, N.Y. (Dwayne Allen Thomas of counsel), forrespondent.
Appeal from a judgment of divorce of the Supreme Court, Orange County (LawrenceH. Ecker, J.), dated September 4, 2013. The judgment, after a nonjury trial, insofar asappealed from, inter alia, awarded the defendant maintenance in the sum of only $8,500per month for a period of eight years and child support in the sum of only $3,500 permonth.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by deleting the provision thereof awarding the defendant maintenance in thesum of $8,500 per month for a period of eight years and substituting therefor a provisionawarding the defendant maintenance in the sum of $10,000 per month for a period of 10years; as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements.
"[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]; seeJaramillo v Jaramillo, 108 AD3d 651, 652 [2013]; Williams v Williams, 102AD3d 957, 957 [2013]). "The court may order maintenance in such amount asjustice requires, considering, inter alia, the standard of living of the parties duringthe marriage, the income and property of the parties, the distribution of marital property,the duration of the marriage, the health of the parties, the present and future earningcapacity of both parties, the ability of the party seeking maintenance to becomeself-supporting, and the reduced or lost lifetime earning capacity of the party seekingmaintenance" (Kret v Kret, 222 AD2d 412, 412 [1995]; see DomesticRelations Law § 236 [B] [6] [a]; Kaufman v Kaufman, 102 AD3d 925, 926 [2013]).Considering the parties' ages, education, work history, their lifestyle during the marriage,and their financial situation, the Supreme Court should have awarded the defendantmaintenance in the sum of $10,000 per month for a period of 10 years (seeDomestic Relations Law § 236 [B] [6] [a]).
The Child Support Standards Act (Domestic Relations Law § 240[1-b]) "sets forth a formula for calculating child support by applying a designatedstatutory percentage, based upon the number of children to be supported, to combinedparental income up to a particular ceiling" (Matter of Freeman v Freeman, 71 AD3d 1143, 1144[2010]; see Holterman vHolterman, 3 NY3d 1, 11 [2004]; [*2]Matterof Cassano v Cassano, 85 NY2d 649, 653 [1995]). Where combined parental incomeexceeds the statutory cap—in this case, $136,000 (see Social Services Law§ 111-i [2] [b], [c])—the Supreme Court, in fixing the basic childsupport obligation on income over the ceiling, has the discretion to apply the factors setforth in Domestic Relations Law § 240 (1-b) (f), or to apply the statutorypercentages, or to apply both (see Domestic Relations Law § 240[1-b] [c] [3]; Matter of Freeman v Freeman, 71 AD3d at 1144). Here, theSupreme Court providently exercised its discretion in applying the statutory cap of thefirst $136,000 of combined parental income in making its calculation of childsupport.
The defendant's remaining contentions are without merit. Mastro, J.P., Leventhal,Duffy and Barros, JJ., concur.