JALOWIEC v. JALOWIEC (2007)

In this divorce action, defendant contends that, because plaintiff did not request maintenance until she served a “Statement of Proposed Disposition,” Supreme Court erred in making the award of maintenance retroactive to the date of commencement of the action. We agree (see Domestic Relations Law § 236 [B] [6] [a];  Beach v. Beach, 158 A.D.2d 848, 551 N.Y.S.2d 429;  Culnan v. Culnan, 142 A.D.2d 805, 807-808, 530 N.Y.S.2d 688, lv. dismissed 73 N.Y.2d 994, 540 N.Y.S.2d 1005, 538 N.E.2d 357), and we therefore modify the order and judgment accordingly.   We are unable to determine on the record before us the date of plaintiff's application, and we therefore remit the matter to Supreme Court for that determination.   We otherwise affirm the order and judgment for reasons stated in the decision at Supreme Court.

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by providing that maintenance shall be retroactive to the date of plaintiff's application for maintenance and as modified the order and judgment is affirmed without costs, and the matter is remitted to Supreme Court, Oneida County, for further proceedings.

MEMORANDUM: