Sayers v. Sayers

• Decision Date: 12 June 2015
• Docket Number: 702 CA 14-02273
• Citation: 11 N.Y.S.3d 760,2015 N.Y. Slip Op. 05020,129 A.D.3d 1519
• Parties: Richard E. SAYERS, Plaintiff–Appellant, v. Janice M. SAYERS, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1519
11 N.Y.S.3d 760
2015 N.Y. Slip Op. 05020

Richard E. SAYERS, Plaintiff–Appellant
v.
Janice M. SAYERS, Defendant–Respondent.

702 CA 14-02273

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

June 12, 2015.

11 N.Y.S.3d 761

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

Muldoon, Getz & Reston, Rochester (Margaret McMullen Reston of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, and WHALEN, JJ.

Opinion

MEMORANDUM:

129 A.D.3d 1519

Plaintiff husband appeals from an order that denied his motion seeking, inter alia, a downward modification of his maintenance obligation and counsel fees. We note at the outset that, while we agree with plaintiff that Supreme Court misapplied our holding in Foti v. Foti, 114 A.D.3d 1207, 979 N.Y.S.2d 914 in denying that part of the motion seeking a downward modification of his maintenance obligation, the error is of no moment. In Foti, we held that the wife was not entitled to partial summary judgment determining that certain property was separate property because there was an issue of fact whether she had commingled her interests in the property with marital property. In so holding, we noted that the parties had filed a joint federal tax return in which the wife reported her interest in the properties as tax losses, and we wrote that “ ‘[a] party to litigation may not take a position contrary to a position taken in an income tax return’ ” (id. at 1208, 979 N.Y.S.2d 914 ). Here, contrary to the court's determination, plaintiff was not taking a position contrary to a position taken on previously filed tax returns. Plaintiff and his current wife filed joint income tax returns,

129 A.D.3d 1520

listing their income and earnings. At the hearing on his motion, plaintiff attempted to distinguish his income and earnings from those of his current wife. He at no time contradicted information contained in the tax return. In any event, we note that, regardless of the court's erroneous reliance on Foti, a court may appropriately consider the assets of a party's current spouse in determining whether to modify the party's maintenance obligation (see e.g. Chisholm v. Chisholm, 138 A.D.2d 829, 830–831, 525 N.Y.S.2d 934 ).

We reject...