Salvato v. Salvato

• Decision Date: 18 November 2011
• Parties: Karen L. SALVATO, Plaintiff–Respondent, v. Larry P. SALVATO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08399
89 A.D.3d 1509
933 N.Y.S.2d 791

Karen L. SALVATO, Plaintiff–Respondent,
v.
Larry P. SALVATO, Defendant–Appellant.

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

Nov. 18, 2011.

[933 N.Y.S.2d 791]

Law Office of Mark A. Young, Rochester (Bridget L. Field of Counsel), for Defendant–Appellant.

Handelman, Witkowicz & Levitsky, Rochester (Steven M. Witkowicz of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

[89 A.D.3d 1509] Defendant appeals from a judgment of divorce that, inter alia, directed him to pay maintenance and child support. Contrary to defendant's contention, Supreme Court properly determined the

[933 N.Y.S.2d 792]

amount of child support. In determining a parent's income for purposes of child support, the court shall deduct from income any maintenance paid to a spouse “ provided the order or agreement provides for a specific adjustment ... in the amount of child support payable upon the termination of ... maintenance to such spouse” (Domestic Relations Law § 240[1–b][b][5][vii][C] ). Here, there was no provision for an adjustment of child support upon the termination [89 A.D.3d 1510] of maintenance, and thus there was no basis for the court to deduct maintenance from defendant's income in determining the amount of child support ( cf. Schiffer v. Schiffer, 21 A.D.3d 889, 890–891, 800 N.Y.S.2d 752; Kessinger v. Kessinger, 202 A.D.2d 752, 753–754, 608 N.Y.S.2d 358). We further conclude that, although defendant testified at trial that his current earnings were less than his earnings from the previous year, the court did not abuse its discretion in using his income from the previous year to calculate child support. Defendant failed to provide a consistent explanation for the decrease in his income from his employment at his family's business.

Contrary to defendant's further contention, the court did not abuse its discretion in awarding maintenance to plaintiff of $1,000 a month for a period of four years ( see McCarthy v. McCarthy, 57 A.D.3d 1481, 1481–1482, 870 N.Y.S.2d 669). “[T]he amount and duration of maintenance are matters committed to the sound discretion of the trial court” ( Boughton v. Boughton, 239 A.D.2d 935, 935, 659 N.Y.S.2d 607). Here, the court considered all the factors set forth in Domestic Relations Law § 236(B)(6)(a), and properly balanced plaintiff's reasonable needs against defendant's ability to pay ( see Torgersen v....