McCARTHY v. McCARTHY

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

Della M. McCARTHY, Plaintiff-Respondent, v. Stephen D. McCARTHY, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ. Spadafora & Verrastro, LLP, Buffalo (John E. Spadafora of Counsel), for Defendant-Appellant. Moriarty & Grocott, Buffalo (Steven H. Grocott of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment of divorce that, inter alia, awarded plaintiff durational maintenance and a share of defendant's 401(k) retirement account pursuant to Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15.  “As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court” (Boughton v. Boughton, 239 A.D.2d 935, 935, 659 N.Y.S.2d 607) and, contrary to defendant's contention, we perceive no abuse of discretion with respect to the award of maintenance.   The record establishes that Supreme Court properly considered the factors set forth in Domestic Relations Law § 236(B)(6)(a) in fashioning a maintenance award that “reflects an appropriate balancing of plaintiff's needs and defendant's ability to pay” (Torgersen v. Torgersen, 188 A.D.2d 1023, 1024, 592 N.Y.S.2d 539, lv. denied 81 N.Y.2d 709, 599 N.Y.S.2d 803, 616 N.E.2d 158).   We further conclude that the court did not abuse its discretion in awarding plaintiff a share of defendant's 401(k) retirement account in accordance with the Majauskas formula in light of, inter alia, the extensive commingling of assets and liabilities during the marriage and defendant's wasteful dissipation of both marital property and plaintiff's separate property (see generally Berge v. Berge, 159 A.D.2d 960, 552 N.Y.S.2d 779).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: