HAINES v. HAINES (2007)

In a matrimonial action in which the parties were divorced by judgment dated September 23, 2004, the defendant appeals, by permission, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated June 21, 2006, as, after a nonjury trial, awarded the plaintiff maintenance in the sum of $1,200 per month until May 1, 2019.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff maintenance in the sum of $1,200 per month until May 1, 2019, and substituting therefor a provision awarding the plaintiff maintenance in the sum of $900 per month until May 1, 2019, or until the death of either party or the plaintiff's remarriage, whichever shall occur sooner;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 The “amount and duration of maintenance is a matter committed to the sound discretion of the trial court” (Grumet v. Grumet, 37 A.D.3d 534, 535, 829 N.Y.S.2d 682;  Scarlett v. Scarlett, 35 A.D.3d 710, 711, 830 N.Y.S.2d 156;  see Rizzuto v. Rizzuto, 21 A.D.3d 545, 799 N.Y.S.2d 900).   In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties (see Domestic Relations Law § 236[B][6][a];  Levine v. Levine, 37 A.D.3d 550, 551, 830 N.Y.S.2d 252, lv. denied 8 N.Y.3d 1003, 839 N.Y.S.2d 444, 870 N.E.2d 683;  Shapiro v. Shapiro, 35 A.D.3d 585, 587-588, 829 N.Y.S.2d 114;  Herzog v. Herzog, 18 A.D.3d 707, 708, 795 N.Y.S.2d 749).   Here, the Supreme Court improvidently exercised its discretion in failing to impute income from the plaintiff's second job as a data entry clerk since that income contributed to the predivorce standard of living and was demonstrative of the plaintiff's earning capacity (see Parise v. Parise, 13 A.D.3d 504, 505, 787 N.Y.S.2d 360;  Matter of Barrow v. Hammond, 305 A.D.2d 496, 759 N.Y.S.2d 539).   The plaintiff had been working at the second job for several years prior to the commencement of the matrimonial action, and the defendant had been working for considerably more than 40 hours per week during this time period.   Additionally, while the plaintiff had been earning only approximately $39,000 per year at the time of the commencement of this action, by the time the matter was heard by the trial court, she had increased her earnings to approximately $56,000.   Unlike the Equitable Distribution Law (see Domestic Relations Law § 236[B][5][d][1] ), Domestic Relations Law § 236(B)(6)(a)(1) contains no express time limitation with respect to calculating income (see 14 Scheinkman, N.Y. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § C236B:36, at 457).   Thus, when considering the “income and property of the respective parties,” the trial court should not exclude any property or income increase which has occurred between the time of commencement of the action and the time of trial (id.).   Accordingly, the trial court should have attributed to the plaintiff a yearly income of $56,000 (see Domestic Relations Law § 236[B][6][a][1] ).

Additionally, the trial court erred in failing to include a provision that the award of maintenance will terminate upon the death of either party or the plaintiff's remarriage (see Domestic Relations Law § 236[B][1] [a];  Gold v. Gold, 276 A.D.2d 587, 714 N.Y.S.2d 323;  Shattuck v. Shattuck, 255 A.D.2d 999, 679 N.Y.S.2d 781;  Newton v. Newton, 246 A.D.2d 765, 667 N.Y.S.2d 778).