Summary
In D'Amato v. D'Amato, 132 AD 3d 1424 (4th Dept 2015), the court, while allowing a credit for maintenance paid during the pendency of the action, specifically affirmed the lower court's denial of a credit for overpayment of child support.
Summary of this case from Betters v. BettersOpinion
1098 CA 15-00151.
10-09-2015
Jo Ann D'AMATO, Plaintiff–Appellant, v. Joseph D'AMATO, Defendant–Respondent.
Hogan Willig, PLLC, Amherst (Steven G. Wiseman of Counsel), for Plaintiff–Appellant. Bennett, Schechter, Arcuri & Will, LLC, Buffalo (Carol A. Condon of Counsel), for Defendant–Respondent.
Hogan Willig, PLLC, Amherst (Steven G. Wiseman of Counsel), for Plaintiff–Appellant.
Bennett, Schechter, Arcuri & Will, LLC, Buffalo (Carol A. Condon of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM: Plaintiff appeals from a judgment of divorce that, among other things, awarded plaintiff durational maintenance, awarded plaintiff $5,000 in attorney's fees, and determined that defendant had no obligation to contribute to the cost of the college education of the parties' son.
We reject plaintiff's contention that she should have been awarded nondurational maintenance. “As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court” (Gately v. Gately, 113 A.D.3d 1093, 1093, 978 N.Y.S.2d 550, lv. dismissed 23 N.Y.3d 1048, 992 N.Y.S.2d 782, 16 N.E.3d 1262 [internal quotation marks omitted]; see McCarthy v. McCarthy, 57 A.D.3d 1481, 1481–1482, 870 N.Y.S.2d 669 ), and we perceive no abuse of discretion here. 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 with respect to the duration of defendant's maintenance obligation (see Martin v. Martin, 115 A.D.3d 1315, 1315, 983 N.Y.S.2d 384 ; see generally Scala v. Scala, 59 A.D.3d 1042, 1043, 873 N.Y.S.2d 787 ).
Plaintiff further contends that Supreme Court erred with respect to the distributive award by permitting defendant to recoup his overpayment of child support and maintenance during the pendency of the action. We note with respect to child support that, although there is a strong public policy against restitution or recoupment of child support overpayments (see Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66, rearg. denied 13 N.Y.3d 888, 893 N.Y.S.2d 834, 921 N.E.2d 602 ; Matter of Annette M.R. v. John W.R., 45 A.D.3d 1306, 1307, 845 N.Y.S.2d 616 ), here the record establishes that the court did not award defendant credit for overpayment of child support. Contrary to plaintiff's contention with respect to maintenance, we conclude that the court did not abuse its discretion in giving defendant a credit for his overpayment of maintenance during the pendency of the action (see Johnson, 12 N.Y.3d at 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 ).
We agree with plaintiff, however, that the court abused its discretion in awarding her only $5,000 in attorney's fees, inasmuch as defendant “is the monied spouse and there is no evidence in this record that [plaintiff] engaged in dilatory tactics” (Murphy v. Murphy, 126 A.D.3d 1443, 1447, 6 N.Y.S.3d 825 ; see Domestic Relations Law § 237[a] ; Mann v. Mann, 244 A.D.2d 928, 929–930, 665 N.Y.S.2d 238 ). We therefore modify the judgment by increasing the award of attorney's fees to $10,000.
We also agree with plaintiff that the court erred in refusing to direct defendant to contribute to the cost of the son's education at a private college, and we therefore further modify the judgment accordingly. Upon consideration of the parents' educational backgrounds, the child's scholastic ability, and the parents' ability to pay (see Francis v. Francis, 72 A.D.3d 1594, 1595, 899 N.Y.S.2d 699 ; Reiss v. Reiss, 56 A.D.3d 1293, 1294, 870 N.Y.S.2d 177 ), we conclude that “[defendant's] contribution should [be] 50% of what it would annually cost to send his son to a college in the State University of New York (hereinafter SUNY) system” (Matter of Holliday v. Holliday, 35 A.D.3d 468, 469, 828 N.Y.S.2d 96 ; see Reiss, 56 A.D.3d at 1294, 870 N.Y.S.2d 177 ), with a credit for the $5,000 that defendant contributed to the son's college expenses pursuant to a prior order. Inasmuch as we are unable to determine the annual cost of attending a college in the SUNY system from the record on appeal, we remit the matter to Supreme Court to calculate the amount of defendant's contribution (see Holliday, 35 A.D.3d at 469, 828 N.Y.S.2d 96 ). We note that, upon remittal, the court may consider whether defendant is entitled to a credit against child support for college expenses, “ ‘taking into account the needs of the custodial parent to maintain a household and provide certain necessaries' ” (Juhasz v. Juhasz [appeal No. 2], 92 A.D.3d 1209, 1212, 939 N.Y.S.2d 675 ).
Finally, we reject plaintiff's contention that the court erred in refusing to order defendant to pay plaintiff the sum of $4,650, for a debt incurred to purchase a vehicle for the parties' daughter. It is undisputed that defendant owes the debt to a third party for an expense incurred after the commencement of the divorce action, and thus the court properly refused to order him to pay that amount to plaintiff. “Expenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt” (Epstein v. Messner, 73 A.D.3d 843, 845, 900 N.Y.S.2d 454 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by increasing the award of attorney's fees to $10,000, and by vacating the 20th decretal paragraph and directing defendant to pay toward the cost of his son's college education 50% of the cost of an education at a college in the State University of New York system, and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Erie County, to calculate that amount.