Opinion
2012-02-14
Judy HERSCHORN, Plaintiff–Respondent–Appellant, v. Brian HERSCHORN, Defendant–Appellant–Respondent.
Newman & Denney P.C., New York (Louis I. Newman of counsel), for appellant-respondent. Garr & White, P.C., New York (Ira E. Garr and Jordana Barish of counsel), for respondent-appellant.
Newman & Denney P.C., New York (Louis I. Newman of counsel), for appellant-respondent. Garr & White, P.C., New York (Ira E. Garr and Jordana Barish of counsel), for respondent-appellant.
ANDRIAS, J.P., SAXE, SWEENY, ACOSTA, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered March 18, 2011, which, after a hearing, denied defendant's motion for an order declaring him to be the primary custodial parent of the parties' two children for child support purposes, directed a downward modification of defendant's child support obligation in the amount of $500 per child per month, granted plaintiff's motion for an upward modification of the award of maintenance to the extent of extending the award of $2,500 per month for five years, and denied plaintiff's application for an award of counsel fees, unanimously affirmed, without costs. Order, same court and Justice, entered March 22, 2011, which granted plaintiff's application for a judgment in the amount of $2,291.43, unanimously affirmed, without costs.
Although the children have chosen to spend much of their time with defendant since the parties' divorce, the record shows that their feelings toward plaintiff were influenced and fostered by defendant's expressed hostility toward her ( see Matter of Muller v. Muller, 221 A.D.2d 635, 634 N.Y.S.2d 190 [1995] ), as well as by his acquiring plaintiff's share of the former marital home, further inducing them to stay with him rather than with plaintiff ( see Forrest v. Forrest, 212 A.D.2d 475, 623 N.Y.S.2d 214 [1995] ). The court properly determined that a change in custodial designation was not appropriate ( see Powers v. Powers, 37 A.D.3d 316, 830 N.Y.S.2d 132 [2007] ). No change in custody could, in any event, be ordered as to the older child, who has reached the age of majority ( see Toppel v. Toppel, 67 A.D.2d 628, 412 N.Y.S.2d 17 [1979] ). The court's reduction of defendant's child support obligation by $500 to reflect the practical reality, while denying defendant's application to terminate it altogether, was appropriate (Domestic Relations Law § 236[B][9][b]; Anonymous v. Anonymous, 286 A.D.2d 585, 729 N.Y.S.2d 890 [2001] ).
Plaintiff demonstrated a substantial change in circumstances warranting an upward modification in maintenance. Contrary to expectations that she would be able to earn an income and re-establish her business now that the children were older, the business has drained her resources and generated a loss. The court's extension of her $2,500 monthly maintenance for an additional five-year period is appropriate under the circumstances ( see Chalif v. Chalif, 298 A.D.2d 348, 751 N.Y.S.2d 197 [2002]; Silverman v. Silverman, 304 A.D.2d 41, 51, 756 N.Y.S.2d 14 [2003] ).
In addition, the court properly determined that plaintiff had no obligation with respect to certain costs associated with an additional mortgage taken on the former marital residence to facilitate defendant's acquisition of plaintiff's interest. These costs were incurred by defendant, and plaintiff did not agree to be responsible for them ( see generally Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ).
We decline to alter the motion court's discretionary denial of counsel's fees ( see Kahn v. Oshin–Kahn, 43 A.D.3d 253, 256, 840 N.Y.S.2d 785 [2007] ). Finally, we affirm the court's grant to plaintiff of a judgment in the amount of $2,291.43, representing sums defendant improperly deducted from support to cover the increase in apartment maintenance costs caused by his unilateral increase in the mortgage.