Jelfo v. Jelfo

Citation916 N.Y.S.2d 427,81 A.D.3d 1255
PartiesTheresa Anne JELFO, Plaintiff-Respondent, v. John Michael JELFO, Jr., Defendant-Appellant. (Appeal No. 1.)
Decision Date10 February 2011
CourtNew York Supreme Court — Appellate Division

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:

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 properlyrefused 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 the trial court' " ( Frost v. Frost, 49 A.D.3d 1150, 1150-1151, 854 N.Y.S.2d 621), and we conclude that the court did not abuse its discretion in awarding maintenance to plaintiff for a period of five years. The record establishes that the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6), including the reasonable needs of both parties ( see Griggs v. Griggs, 44 A.D.3d 710, 712, 844 N.Y.S.2d 351; see generally Hartog v. Hartog, 85 N.Y.2d 36, 52, 623 N.Y.S.2d 537, 647 N.E.2d 749).

Defendant further contends in appeal No. 1 that the court abused its discretion in ordering him to pay the attorney's fees of plaintiff incurred with respect to the divorce action, and in appeal No. 2 he contends the court abused its discretion in ordering him to pay plaintiff $2,500 toward her attorney's fees with respect to his motion. We conclude in appeal No. 1, i.e., the divorce action, that the court properly considered, inter alia, the disparity in the parties' respective incomes, and thus the court did not abuse its discretion in requiring defendant to pay the attorney's fees for plaintiff in the divorce action ( seegenerally DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168; Mann v. Mann, 244 A.D.2d 928, 929-930, 665 N.Y.S.2d 238). With respect to the order in appeal No. 2, however, we conclude that the court improvidently exercised its discretion in requiring defendant in the fourth ordering paragraph to...

To continue reading

Request your trial
13 cases
  • Szalapski v. Schwartz, 2003/8830.
    • United States
    • New York Supreme Court
    • March 29, 2011
    ...the initial threshold for the husband is to establish a “diligent job search” in the Rochester/Monroe County area. See Jelfo v. Jelfo, 81 A.D.3d 1255, 916 N.Y.S.2d 427 (2011); Simmons v. Simmons, 26 A.D.3d 883, 809 N.Y.S.2d 709(4th Dep't 2006), aff'g 11 Misc.3d 1055A (Sup.Ct. Alleghany Cty.......
  • Cheney v. Cheney
    • United States
    • New York Supreme Court — Appellate Division
    • July 21, 2011
    ...1441, 1442, 902 N.Y.S.2d 700 [2010]; Matter of Freedman v. Horike, 26 A.D.3d 680, 682, 809 N.Y.S.2d 649 [2006]; see also Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427 [2011] ). Here, defendant sought downward modification of the support order immediately upon losing his job.2 He di......
  • Smith v. McCarthy
    • United States
    • New York Supreme Court — Appellate Division
    • October 5, 2016
    ...his subsequent employment in Delaware does not preclude a finding that he diligently sought employment in his field (see Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427 ; Simmons v. Simmons, 11 Misc.3d 1055[A], 2004 N.Y. Slip Op. 51898[U], 2004 WL 3709890 [Sup.Ct., Allegany County], ......
  • Leonardo v. Leonardo
    • United States
    • New York Supreme Court — Appellate Division
    • April 20, 2012
    ...with his former employment ( see Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997, 999, 836 N.Y.S.2d 661; see also Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427). The court therefore properly imputed income to the father because he failed to demonstrate that he [94 A.D.3d 1454......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT