SMITH v. SMITH

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

Sandra J. SMITH, Plaintiff–Respondent–Appellant, v. Charles D. SMITH, Defendant–Appellant–Respondent.

Decided: December 30, 2010

PRESENT:  CENTRA, J.P., CARNI, SCONIERS, AND PINE, JJ. Siegel, Kelleher & Kahn, Buffalo (Kenneth A. Olena of Counsel), for Defendant–Appellant–Respondent. Sacca & Sacca, Lockport (James P. Renda of Counsel), for Plaintiff–Respondent–Appellant. Alvin M. Greene, Attorney for the Children, Buffalo, for Steven S., Lucas S. and Aaron S.

 On appeal from the judgment in this divorce action, defendant contends that Supreme Court abused its discretion in awarding maintenance to plaintiff “in the sum of $900 per week for a period of [16] years, or until [p]laintiff's death, remarriage, or upon her habitual co-habitation with an unrelated male ․ or upon the [d]efendant's retirement at or after age 64, whichever first occurs.”   We agree.   Although the court has broad discretion in fixing the amount and duration of a maintenance award (see Boughton v. Boughton, 239 A.D.2d 935, 659 N.Y.S.2d 607), “the authority of this Court [in determining questions of maintenance] is as broad as that of the trial court” (Marino v. Marino, 229 A.D.2d 971, 972, 645 N.Y.S.2d 252).   In view of the relevant statutory factors, i.e., the almost 23–year duration of the marriage, plaintiff's age, good health, high school education and limited work experience, the disparity in income between the parties and the ages of the children presently in plaintiff's home (see Domestic Relations Law § 236 [B][6][a] ), we modify the judgment by reducing the duration of maintenance to nine years from the date on which the action was commenced (see Burroughs v. Burroughs, 269 A.D.2d 765, 703 N.Y.S.2d 407).

 We reject defendant's further contention that the court abused its discretion in awarding exclusive use and occupancy of the marital residence to plaintiff until the youngest child turns 18, graduates high school or becomes emancipated.  “ ‘Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds' ” (Stacey v. Stacey, 52 A.D.3d 1219, 1221, 860 N.Y.S.2d 350;  see Nissen v. Nissen, 17 A.D.3d 819, 820, 793 N.Y.S.2d 248;  Nolan v. Nolan, 215 A.D.2d 795, 626 N.Y.S.2d 568).   In light of the fact that the youngest child is now 14 years old, we see no reason to disturb the court's determination allowing plaintiff to remain in the marital residence for no longer than four additional years.

Contrary to defendant's contention, the award of attorney's fees to plaintiff was not “grossly excessive.”   The court properly “review[ed] the financial circumstances of both parties together with all the other circumstances of the case, ․ includ[ing] the relative merit of the parties' positions” (DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).   Moreover, the court properly considered defendant's obstructionist conduct, which unnecessarily delayed the proceedings and increased the legal fees incurred by plaintiff (see Johnson v. Chapin, 49 A.D.3d 348, 361, 854 N.Y.S.2d 18, mod. on other grounds 12 N.Y.3d 461, 881 N.Y.S.2d 373, 909 N.E.2d 66, rearg. denied 13 N.Y.3d 888, 893 N.Y.S.2d 834, 921 N.E.2d 602).   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the duration of maintenance to nine years from the date on which the action was commenced and as modified the judgment is affirmed without costs.

MEMORANDUM: