Frank v. Frank

• Decision Date: 30 September 1997
• Parties: , 1997 N.Y. Slip Op. 7836 Steven L. FRANK, Respondent, v. Wendy S. FRANK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 888

662 N.Y.S.2d 888

242 A.D.2d 892, 1997 N.Y. Slip Op. 7836

Steven L. FRANK, Respondent, v. Wendy S. FRANK, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Sept. 30, 1997.

Cooper & Brown by E. Scott Brown Jr., Baldwinsville, for Defendant-Appellant.

Elliott, Stern & Calabrese, LLP by David Stern, Rochester, for Plaintiff-Respondent.

Before DENMAN, P.J., and HAYES, CALLAHAN, DOERR and BOEHM, JJ.

MEMORANDUM:

In this matrimonial action, defendant appeals from an order directing plaintiff to pay defendant the net sum of $158.47 per week, retroactive to November 6, 1995, representing the difference between plaintiff's obligation to pay $170 per week in permanent maintenance and defendant's obligation to pay $50 per month in support for the two children of the marriage. Defendant contends that Supreme Court failed to consider the parties' predivorce standard of living and failed to find that defendant was permanently incapable of becoming self-supporting. Defendant further contends that the court failed to make the maintenance award retroactive to the date of her counterclaim for maintenance. Finally, defendant contends that the court erred in ordering her to pay child support of $50 per month rather than $25 per month in accordance with the minimum support provisions of Domestic Relations Law § 240(1-b)(d).

The court did not err in setting maintenance at $170 per week and did not fail to consider the factors in question. The court made explicit findings concerning the parties' respective incomes, which had not changed appreciably since their separation. In so doing, the court took into account the parties' predivorce standard of living and defendant's inability to become self-supporting. Further, in ordering maintenance of indefinite duration, the court found that defendant suffers from schizophrenia, paranoid type; that she has a long history of mental illness; that it is unlikely that she would improve; and that she is disabled and cannot work.

The court erred, however, in failing to make maintenance retroactive to March 18, 1992, the date of defendant's initial application therefor (see, Domestic Relations Law § 236[B][6][a]; DiSanto v. DiSanto, 198 A.D.2d 838, 604 N.Y.S.2d 413; Berge v. Berge, 159 A.D.2d 960, 961, 552 N.Y.S.2d 779). Contrary to plaintiff's argument, it is irrelevant that the request for maintenance was contained in a counterclaim served in response to a summons but prior to service of the complaint (see, CPLR 3019[a], [d]; Kane v. Kane, 163 A.D.2d 568, 558 N.Y.S.2d 627; Edelman v. Edelman, 88 Misc.2d 156, 158-160, 386 N.Y.S.2d 331; see generally, Siegel, N.Y. Prac § 224, at 327-328 [2d ed.] ). Nor is it significant that the court had declared defendant in default on her counterclaim. That default was later vacated. Under the circumstances, the brief default must be disregarded as a nullity and maintenance ordered retroactive to the date of the original application. Plaintiff is entitled to credits and adjustments for temporary maintenance payments made by him (see, Domestic Relations Law § 236[B][6][a]; Burns v. Burns, 84 N.Y.2d 369, 377, 618 N.Y.S.2d 761, 643 N.E.2d 80). Because the record does not establish the amount of temporary maintenance paid by plaintiff, the matter must be remitted to Supreme Court to determine the amount of arrears and whether it must be paid in one lump sum or installments (see, Domestic Relations Law § 236[B][6][a]; DiSanto v. DiSanto, supra, at 838-839, 604 N.Y.S.2d 413...