KELLY v. KELLY (1999)

 Defendant contends that the Judicial Hearing Officer (JHO) erred in terminating maintenance because the original award of maintenance was intertwined with the distributive award pursuant to O'Brien v. O'Brien (66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712), i.e., the distributive award would have been higher if not for the maintenance awarded.   That contention is not supported by the record.   Rather, the record supports the determination of the JHO that there was a substantial change in circumstances (see, Sasson v. Sasson, 171 A.D.2d 659, 567 N.Y.S.2d 139, lv. dismissed 78 N.Y.2d 1072, 576 N.Y.S.2d 222, 582 N.E.2d 605;  Kansky v. Kansky, 150 A.D.2d 525, 541 N.Y.S.2d 117).

 The JHO erred, however, in granting plaintiff judgment against defendant for the amount of maintenance paid to her while the application to terminate maintenance was pending.   Although a court has the power to order a modification retroactively, “it normally would not do so because of the hardship” involved (Shanahan v. Shanahan, 80 A.D.2d 738, 739, 437 N.Y.S.2d 169).   Here, several years have elapsed, and defendant would be forced to refund a large sum of money.   Under those circumstances, we decline to order defendant to refund maintenance paid from the time of plaintiff's application (cf., Shanahan v. Shanahan, supra, at 739, 437 N.Y.S.2d 169).   We thus modify the order by vacating the second ordering paragraph.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: