Lazar v. Lazar

• Decision Date: 02 January 2015
• Citation: 2015 N.Y. Slip Op. 00020,124 A.D.3d 1242,999 N.Y.S.2d 626
• Parties: Melissa LAZAR, Plaintiff–Respondent–Appellant, v. Barry D. LAZAR, Defendant–Appellant–Respondent. (Appeal No. 3.).
• Court: New York Supreme Court — Appellate Division

?124 A.D.3d 1242
999 N.Y.S.2d 626
2015 N.Y. Slip Op. 00020

Melissa LAZAR, Plaintiff–Respondent–Appellant,
v.
Barry D. LAZAR, Defendant–Appellant–Respondent. (Appeal No. 3.).

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

Jan. 2, 2015

Affirmed as modified and remitted.

[999 N.Y.S.2d 627]

Sheldon B. Benatovich, Williamsville (James P. Renda of Counsel), for Defendant–Appellant–Respondent.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent–Appellant.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, and VALENTINO, JJ. MEMORANDUM:

In appeal No. 1 in this divorce action, defendant appeals from a “temporary order” that, among other things, ordered that plaintiff is entitled to a money judgment in the amount of $98,966.91, effective February 29, 2012, for arrears that accrued

[999 N.Y.S.2d 628]

because defendant failed to pay temporary maintenance, child support and various carrying charges and expenses. In appeal No. 2, defendant appeals from an “order and money judgment” that awarded plaintiff judgment in the amount of $98,966.91 based on the order in appeal No. 1. In appeal No. 3, defendant appeals and plaintiff cross-appeals from a judgment of divorce entered following a nonjury trial. As relevant to the parties' contentions in appeal No. 3, the judgment of divorce directed defendant to pay maintenance for five years retroactive to December 10, 2012, child support, and a portion of plaintiff's attorney fees and expert fees; awarded plaintiff judgment in the amount of $167,425 for defendant's failure to pay court-ordered family support and household expenses not previously reduced to judgment; granted defendant a credit of $138,000 for his separate property claim concerning a home he owned prior to the marriage; and equitably distributed a Swiss bank account and a limited liability company. In appeal No. 4, defendant appeals from an order that, among other things, granted plaintiff a judgment for maintenance arrears in the amount of $70,000, for attorney fees and expert fees in the sum of $42,176.50, and for a distributive award in the sum of $658,381.50.

We note at the outset that the order in appeal No. 1 was subsumed in the order and judgment in appeal No. 2, and we thus dismiss the appeal from the order in appeal No. 1 ( see Hendryx v. Johnson Boys Ford–Mercury, 309 A.D.2d 1260, 1261, 765 N.Y.S.2d 549; Chase Manhattan Bank, N.A. v. Roberts & Roberts, 63 A.D.2d 566, 567, 404 N.Y.S.2d 608).

We address first defendant's appeal from the judgment of divorce in appeal No. 3. Defendant contends that Supreme Court erred both in ordering maintenance for a duration of five years and in ordering that the award of maintenance be effective as of December 10, 2012, which was the last day of trial testimony. “It is well established that, [a]s a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court” ( Myers v. Myers, 118 A.D.3d 1315, 1315, 987 N.Y.S.2d 766 [internal quotation marks omitted]; see McCarthy v. McCarthy, 57 A.D.3d 1481, 1481–1482, 870 N.Y.S.2d 669). 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 insofar as it concerns the duration of defendant's maintenance obligation ( see Martin v. Martin, 115 A.D.3d 1315, 1315, 983 N.Y.S.2d 384; cf. Scala v. Scala, 59 A.D.3d 1042, 1043, 873 N.Y.S.2d 787). We conclude that the court's determination to award maintenance for a period of five years was not an abuse of discretion “inasmuch as the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6)(a)” ( Scully v. Scully, 104 A.D.3d 1137, 1138, 961 N.Y.S.2d 646; see Schmitt v. Schmitt, 107 A.D.3d 1529, 1529, 968 N.Y.S.2d 284; McCarthy, 57 A.D.3d at 1482, 870 N.Y.S.2d 669; cf. Perry v....