RUBY v. RUBY

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

Jane RUBY, Plaintiff-Appellant, v. Raymond RUBY, Defendant-Respondent.  (Appeal No. 1.)

Decided: March 31, 1999

PRESENT:  DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and SCUDDER, JJ. Robert J. Pearl of counsel, Rochester, for plaintiff-appellant. S. Gerald Davidson of counsel, Davidson Fink Cook & Kelly, Rochester, for defendant-respondent.

 Contrary to plaintiff's contentions, Supreme Court did not rely solely on the child's needs in determining child support, and the court made a “record articulation” of its reasons for not applying the statutory percentage to the parental income in excess of $80,000 (Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878;  see, Matter of Dower v. Niewiadowski, 233 A.D.2d 847, 848, 662 N.Y.S.2d 946).  We further reject plaintiff's contention that the court erred in calculating the interest income of defendant in determining his child support obligation.

 We agree with plaintiff, however, that the court erred in failing to provide for an increase in child support upon the termination of defendant's maintenance obligation to plaintiff (see, Domestic Relations Law § 240[1-b] [b] [5][vii][C];  see, Lekutanaj v. Lekutanaj, 234 A.D.2d 429, 651 N.Y.S.2d 154;  Matter of Dower v. Niewiadowski, supra, at 849, 662 N.Y.S.2d 946;  Polychronopoulos v. Polychronopoulos, 226 A.D.2d 354, 640 N.Y.S.2d 256).  Once the maintenance payments end, defendant's pro rata percentage of the combined income will increase from 80% to 83%, and the child support award of $343 per week will increase to $356 per week.

 We reject the contention of plaintiff that she has an interest in the Honeoye Lake or Canandaigua Lake properties.   Pursuant to the valid and enforceable prenuptial agreement, plaintiff has no interest in those properties because she was not the title holder at the time of the divorce.

Finally, we reject the contention of plaintiff that the award of attorney's fees is inadequate (see generally, Domestic Relations Law § 237[a];  DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).

We modify the order and judgment, therefore, by providing in the third ordering and decretal paragraph that, upon termination of maintenance, defendant's child support obligation shall increase to $356 per week.

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

MEMORANDUM: