CORDELL v. CORDELL

Reset A A Font size: Print

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

Rickey L. CORDELL, Plaintiff-Respondent, v. Annette CORDELL, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., LAWTON, WISNER, HURLBUTT and BALIO, JJ. Vincent J. Finocchio, Jr., Syracuse, for defendant-appellant. Charles Farrell, Baldwinsville, for plaintiff-respondent.

 On appeal from a judgment of divorce, defendant contends that the award of maintenance should have been nondurational or, in the alternative, should have been granted until the parties' minor child reached the age of majority.   Where, as here, the record establishes that Supreme Court gave appropriate consideration to the factors enumerated in Domestic Relations Law § 236(B)(6)(a), this Court will not disturb the determination of maintenance absent an abuse of discretion (see, Lombardo v. Lombardo, 255 A.D.2d 653, 680 N.Y.S.2d 270;  see also, Grenier v. Grenier, 210 A.D.2d 557, 558, 620 N.Y.S.2d 139).   We perceive no abuse of discretion here.   Lifetime maintenance is proper when the dependent spouse is incapable of future self-support (see, Behrmann v. Behrmann, 204 A.D.2d 1076, 613 N.Y.S.2d 80;  see also, Michelle S. v. Charles S., 257 A.D.2d 405, 683 N.Y.S.2d 89).   Defendant's own expert testified that defendant's mental illness was treatable and that defendant could become employable within a two-year period.   After considering other relevant factors, the court provided for a three-year period of maintenance.   That was not an abuse of discretion.   Nor did the court abuse its discretion in denying defendant's request for maintenance until the minor child reached the age of majority (cf., McDonald v. McDonald, 155 A.D.2d 929, 547 N.Y.S.2d 752).   There was no proof that defendant had forgone employment opportunities to raise the child.   Rather, there were times after the child was born that defendant was employed outside the home, demonstrating her ability to become self-supporting.

 Defendant further contends that the court erred in reducing plaintiff's child support obligation.   We disagree.   Since entry of the first support order, plaintiff's annual income had decreased $10,000.   Although plaintiff may have turned down several offers for overtime, he had not changed employment and continued to work the more lucrative third shift.   Thus, the rejected overtime, if any, does not account for the reduction in income (cf., Matter of Moore v. Moore, 115 A.D.2d 894, 895, 496 N.Y.S.2d 583;  see generally, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, rearg. denied 39 N.Y.2d 943, 386 N.Y.S.2d 1028, 352 N.E.2d 896, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310).   Where, as here, the party's change in income is not within that party's control, downward modification may be appropriate (see, Domestic Relations Law § 236 [B][9][b];  see also, Hickland v. Hickland, supra, at 5, 382 N.Y.S.2d 475, 346 N.E.2d 243).

Judgment unanimously affirmed without costs.

MEMORANDUM: