De La Torre v. De La Torre

• Decision Date: 11 May 1992
• Citation: 183 A.D.2d 744,583 N.Y.S.2d 479
• Court: New York Supreme Court — Appellate Division
• Parties: Margaret De La TORRE, Respondent, v. Robert M. De La TORRE, Appellant.

Page 479

583 N.Y.S.2d 479

183 A.D.2d 744

Margaret De La TORRE, Respondent, v. Robert M. De La TORRE, Appellant.

Supreme Court, Appellate Division Second Department.

May 11, 1992.

Joel R. Brandes, Garden City, for appellant.

Lecci, Wolin & Wolin, Hicksville (Salvatore A. Lecci, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Dunn, J.), entered January 16, 1990, as, after a nonjury trial, (1) directed him to pay the plaintiff wife maintenance in the sum of $100 per week for five years, (2) directed him to pay child support in the sum of $94.67 per week per child, (3) awarded custody of the two children of the marriage to the wife, (4) awarded him visitation with the children on only one weekend day per week on either a Saturday or Sunday from 10:00 A.M. to 8:00 P.M., New Years Day, Easter Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day, in alternating years, Father's Day, and a two week period during the summer, and (5) granted the wife a distributive award in the sum of $20,221.

ORDERED that the judgment is modified, on the facts and as a matter of discretion, by (1) reducing the duration of the maintenance award from five years to three years, and (2) deleting from the eighth decretal paragraph the sum of $20,221 and substituting therefore the sum of $13,508.30; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the husband's present contention, we discern no error in the award of child support in the amount of $94.67 per week per child. The court correctly calculated the amount of child support pursuant to the Child Support Standards Act by taking into account the relevant and appropriate deductions from the husband's gross income (see, Domestic Relations Law § 240[1-b].

Similarly unavailing is the husband's challenge to the schedule of visitation fashioned by the court. The visitation granted herein insures frequent and meaningful contact between the husband and his sons (see, generally, Nelms v. Nelms, 135 A.D.2d 518, 522 N.Y.S.2d 14; Twersky v. Twersky, 103 A.D.2d 775, 477 N.Y.S.2d 409; Daghir v. Daghir, 82 A.D.2d 191, 193, 441 N.Y.S.2d 494, aff'd, 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324). Overnight visitation (other than two weeks during the summer) was properly denied at this time due to the uncertain and inadequate living arrangements of the husband (see, e.g., Nelms v. Nelms, supra ).

While the court properly awarded the wife maintenance in the amount of $100 per week after considering the financial circumstances of both parties, including their reasonable needs and means as well as their standard of living, the court erred in awarding maintenance for five years (see, Domestic Relations Law § 236[B][6]; Brownstein v. Brownstein, 167 A.D.2d 127, 129, 561 N.Y.S.2d 216; Hirschman v. Hirschman, 156 A.D.2d 644, 645, 549 N.Y.S.2d 142; Raviv v. Raviv, 153 A.D.2d 932, 934, 545 N.Y.S.2d 739; Foy v. Foy, 121 A.D.2d 501, 503 N.Y.S.2d 823). Maintenance is designed to give the spouse economic independence (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712), and should continue only as long as is required to render the recipient self-supporting (see, Cohen v. Cohen, 154 A.D.2d 808, 546 N.Y.S.2d 473; Oswald v. Oswald, 154 A.D.2d 817, 818, 546 N.Y.S.2d 475). Here, given the wife's level of education and employment status, we conclude that she had the ability to become self-supporting within three years from the date of the judgment (see Oswald v. Oswald, supra; Gundlah v. Gundlah, 116 A.D.2d 1026, 498 N.Y.S.2d 641).

The husband also contends that the distributive award to the wife was excessive inasmuch as the court failed to reduce his pension amount by 34%, which is income tax to be paid up on the early withdrawal. The husband further maintains that the court also erred by not...