Jelfo v. Jelfo

• Court: New York Supreme Court Appellate Division
• Writing for the Court: CARNI
• Citation: 916 N.Y.S.2d 427,81 A.D.3d 1255
• Decision Date: 10 February 2011
• Parties: Theresa Anne JELFO, Plaintiff-Respondent, v. John Michael JELFO, Jr., Defendant-Appellant. (Appeal No. 1.)

916 N.Y.S.2d 427
81 A.D.3d 1255

Theresa Anne JELFO, Plaintiff-Respondent,
v.
John Michael JELFO, Jr., Defendant-Appellant. (Appeal No. 1.)

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

Feb. 10, 2011.

916 N.Y.S.2d 429

Finocchio & English, Esqs., Syracuse, D.J. & J.A. Cirando, Esqs. (Elizabeth Dev. Moeller of Counsel), for Defendant-Appellant.

James E. Corl, Jr., Cicero (J. Scott Porter of Counsel), for Plaintiff-Respondent.

Sherene Pavone, Attorney for the Children, Manlius, for Jessica A.S.J. and Joanna S.J.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

MEMORANDUM:

81 A.D.3d 1255

In appeal No. 1, defendant appeals from a judgment of divorce and contends, inter alia, that Supreme Court erred in awarding plaintiff maintenance and attorney's fees. In appeal No. 2, he contends that the court erred in denying his motion insofar as he sought a downward modification of the maintenance and child support obligations and further erred in ordering him to pay plaintiff the sum of $2,500 for attorney's fees incurred by her in connection with his motion.

We reject the contention of defendant in appeal No. 1 that the court erred in refusing to take into account the payments that he made to assist in the support and college expenses of his children from a prior marriage. It is undisputed that there was neither a court order nor a written agreement with respect to the support of those children, and thus the court properly

81 A.D.3d 1256

refused to reduce defendant's income by the amount of those payments in calculating his instant child support obligation ( see Domestic Relations Law § 240[1-b][b][5][vii][D] ). Furthermore, it is well settled that the court may consider the needs of children who are not the subject of this divorce action in determining whether the pro-rata share of defendant's child support obligation is unjust or inappropriate "only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action" (§ 240[1-b][f] [8] ), and that is not the case here.

We reject defendant's further contention in appeal No. 1 that the court abused its discretion in requiring him to pay maintenance to plaintiff. At the time of the trial, defendant earned approximately $110,000 per year, while plaintiff earned approximately $45,000 per year. It is well established that the " 'amount and duration of maintenance are committed to the sound discretion of...