D'Amato v. D'Amato

• Decision Date: 09 October 2015
• Docket Number: 1098 CA 15-00151.
• Citation: 2015 N.Y. Slip Op. 07420,132 A.D.3d 1424,18 N.Y.S.3d 801
• Parties: Jo Ann D'AMATO, Plaintiff–Appellant, v. Joseph D'AMATO, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1424
18 N.Y.S.3d 801
2015 N.Y. Slip Op. 07420

Jo Ann D'AMATO, Plaintiff–Appellant
v.
Joseph D'AMATO, Defendant–Respondent.

1098 CA 15-00151.

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

Oct. 9, 2015.

18 N.Y.S.3d 802

Hogan Willig, PLLC, Amherst (Steven G. Wiseman of Counsel), for Plaintiff–Appellant.

Bennett, Schechter, Arcuri & Will, LLC, Buffalo (Carol A. Condon of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DeJOSEPH, JJ.

Opinion

MEMORANDUM:

132 A.D.3d 1425

Plaintiff appeals from a judgment of divorce that, among other things, awarded plaintiff durational maintenance, awarded plaintiff $5,000 in attorney's fees, and determined that defendant had no obligation to contribute to the cost of the college education of the parties' son.

We reject plaintiff's contention that she should have been awarded nondurational maintenance. “As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court” (Gately v. Gately, 113 A.D.3d 1093, 1093, 978 N.Y.S.2d 550, lv. dismissed 23 N.Y.3d 1048, 992 N.Y.S.2d 782, 16 N.E.3d 1262 [internal quotation marks omitted]; see McCarthy v. McCarthy, 57 A.D.3d 1481, 1481–1482, 870 N.Y.S.2d 669 ), and we perceive no abuse of discretion here. Although the authority of this Court in determining issues of maintenance is as broad as that of the trial court, we decline to substitute our discretion for that of the trial court with respect to the duration of defendant's maintenance obligation (see Martin v. Martin, 115 A.D.3d 1315, 1315, 983 N.Y.S.2d 384 ; see generally Scala v. Scala, 59 A.D.3d 1042, 1043, 873 N.Y.S.2d 787 ).

Plaintiff further contends that Supreme Court erred with respect to the distributive award by permitting defendant to recoup his overpayment of child support and maintenance during the pendency of the action. We note with respect to child support that, although there is a strong public policy against restitution or recoupment of child support overpayments (see Johnson v. Chapin, 12 N.Y.3d 461, 466, 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 ; Matter of Annette M.R. v. John W.R., 45 A.D.3d 1306, 1307, 845 N.Y.S.2d 616 ), here the record establishes that the court did not award defendant credit for overpayment of child support. Contrary to plaintiff's contention with respect to maintenance, we conclude that the court did not abuse its discretion in giving defendant a credit for his overpayment of...