DONNA LATTUCA PLAINTIFF RESPONDENT v. JOHN LATTUCA DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

DONNA M. LATTUCA, PLAINTIFF–RESPONDENT, v. JOHN M. LATTUCA, DEFENDANT–APPELLANT.

CA 14–01566

Decided: June 19, 2015

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. STEINER & BLOTNIK, BUFFALO (RICHARD J. STEINER OF COUNSEL), FOR DEFENDANT–APPELLANT. BADACK & HARTNETT, SILVER CREEK (DONNA MARIE HARTNETT OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the fifth decretal paragraph, and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum:  Defendant husband appeals from a judgment of divorce that, inter alia, awarded plaintiff wife maintenance and ordered her to pay child support to defendant.   Defendant contends that the Referee, whose Report and Recommendation was confirmed by Supreme Court, erred in excluding plaintiff's maintenance award from her income in calculating her child support obligation.   We reject that contention, inasmuch as “there is no authority in the Child Support Standards Act (CSSA) for adding future maintenance payments to the recipient's income for the purpose of calculating child support” (Huber v. Huber, 229 A.D.2d 904, 904;  see Lazar v. Lazar, 124 AD3d 1242, 1244–1245;  Burns v. Burns, 70 AD3d 1501, 1502–1503).   We likewise reject defendant's contention that the Referee erred in declining to impute additional income to plaintiff based on her ability to work.   There is no evidence that plaintiff “has reduced resources or income in order to reduce or avoid the parent's obligation for child support” (Domestic Relations Law § 240[1–b][b][5][v] ).

We agree with defendant, however, that the Referee erred in failing to include the value of plaintiff's food stamps in her yearly income for purposes of calculating her child support obligation.   Contrary to plaintiff's contention, food stamps are not “public assistance” to be deducted from income pursuant to Domestic Relations Law § 240(1–b)(b)(5)(vii)(E) inasmuch as Social Services Law article 5, which governs public assistance, refers to “public assistance or food stamps” (Social Services Law § 131[12] ), thereby distinguishing the two (see generally Matter of Sorokina v Hansell, 45 AD3d 1388, 1389, appeal dismissed 10 NY3d 806;  Matter of Kolodziejczyk v. Wing, 261 A.D.2d 927, 927–928;  Matter of Bryant v. Perales, 161 A.D.2d 1186, 1187, lv denied 76 N.Y.2d 710).   Because plaintiff's income does not fall below the poverty income guidelines when the value of her food stamps is included, we modify the judgment by vacating the award of child support, and we remit the matter to Supreme Court to recalculate plaintiff's child support obligation in compliance with the CSSA (see Lauzonis v. Lauzonis, 105 AD3d 1351, 1354).

Finally, we reject defendant's contention that the duration of plaintiff's maintenance award should be reduced from 15 to five years.   The Referee considered the appropriate statutory factors (see Domestic Relations Law § 236[B][6][a];  Lazar, 124 AD3d at 1243) and, under the circumstances, including plaintiff's age, disability, and role as a homemaker for the majority of the parties' marriage, we cannot conclude that the duration of the maintenance award was an abuse of discretion (see Myers v. Myers, 118 AD3d 1315, 1316;  Rooney v. Rooney [appeal No. 3], 92 AD3d 1294, 1295, lv denied 19 NY3d 810).

Frances E. Cafarell

Clerk of the Court