Smith v. Smith

Dec 31, 2003
Versions:2 A.D.3d 1344
769 N.Y.S.2d 417
2003 N.Y. App. Div. LEXIS 14322

Appeal from those parts of a judgment of Supreme Court, *1345Oneida County (Garni, J.), entered June 10, 2002, that awarded maintenance to defendant in the amount of $100 per week for a period of five years and denied plaintiffs application for counsel fees.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to plaintiffs contention, Supreme Court properly awarded defendant maintenance in the amount of $100 per week for a period of five years. “The amount and duration of maintenance are matters committed to the sound discretion of the trial court” (Francis v Francis, 262 AD2d 1065, 1066 [1999]). Here, the court determined that there was a significant disparity in the incomes of the parties and set forth the factors it considered in awarding maintenance (cf. Hartnett v Hartnett, 281 AD2d 900, 901 [2001]). Although the court did not specifically address the parties’ predivorce standard of living (see Domestic Relations Law § 236 [B] [6] [a]; Hartog v Hartog, 85 NY2d 36, 50-51 [1995]), the record is sufficient for us to make the necessary findings (see Ortiz v Ortiz, 267 AD2d 991 [1999]). The parties had recently purchased the marital residence, which they improved with a swimming pool and for which they had purchased new furniture. Plaintiff was awarded exclusive possession of the marital residence and, although defendant was awarded one half of the equity, that amount is not significant. At the time of the trial, defendant was residing with his mother in a two-bedroom house, and he testified that he intended to reside there for the immediate future because of financial constraints. We therefore conclude that the maintenance award is not an abuse of discretion. We further conclude that the court did not abuse its discretion in refusing to award plaintiff counsel fees (see generally DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Hayes, JJ.