GREEN v. GREEN (2004)

Supreme Court, Appellate Division, Fourth Department, New York.

Joe C. GREEN, Plaintiff-Appellant, v. Connie GREEN, Defendant-Respondent.

Decided: December 30, 2004

PRESENT: GREEN, J.P., PINE, HURLBUTT, MARTOCHE, AND SMITH, JJ.

Siegel, Kelleher & Kahn, Buffalo (Kenneth A. Olena of Counsel), for Plaintiff-Appellant. Moriarty & Dee, Buffalo (Robert B. Moriarty of Counsel), for Defendant-Respondent.

The judgment on appeal provides that plaintiff's maintenance obligation in the amount of $8,000 per month shall terminate upon the death of either party or upon defendant's remarriage. Because it is impossible to predict the income of plaintiff after he retires or defendant's earning capacity at that time, we modify that part of the judgment by adding “or until modified by court order” (see DiFilippo v. DiFilippo, 262 A.D.2d 1070, 1071, 692 N.Y.S.2d 259). We otherwise affirm for the reasons stated in the decision at Supreme Court.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by providing in the fourth decretal paragraph that maintenance shall terminate upon the death of either party or the marriage of defendant or until modified by court order and as modified the judgment is affirmed without costs.

MEMORANDUM:

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