Opinion
2015-06-19
Donna M. LATTUCA, Plaintiff–Respondent, v. John M. LATTUCA, Defendant–Appellant.
Steiner & Blotnik, Buffalo (Richard J. Steiner of Counsel), for Defendant–Appellant. Badack & Hartnett, Silver Creek (Donna Marie Hartnett of Counsel), for Plaintiff–Respondent.
Steiner & Blotnik, Buffalo (Richard J. Steiner of Counsel), for Defendant–Appellant. Badack & Hartnett, Silver Creek (Donna Marie Hartnett of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant husband appeals from a judgment of divorce that, inter alia, awarded plaintiff wife maintenance and ordered her to pay child support to defendant. Defendant contends that the Referee, whose Report and Recommendation was confirmed by Supreme Court, erred in excluding plaintiff's maintenance award from her income in calculating her child support obligation. We reject that contention, inasmuch as “there is no authority in the Child Support Standards Act (CSSA) for adding future maintenance payments to the recipient's income for the purpose of calculating child support” (Huber v. Huber, 229 A.D.2d 904, 904, 645 N.Y.S.2d 211; see Lazar v. Lazar, 124 A.D.3d 1242, 1244–1245, 999 N.Y.S.2d 626; Burns v. Burns, 70 A.D.3d 1501, 1502–1503, 894 N.Y.S.2d 795). We likewise reject defendant's contention that the Referee erred in declining to impute additional income to plaintiff based on her ability to work. There is no evidence that plaintiff “has reduced resources or income in order to reduce or avoid the parent's obligation for child support” (domestic relatioNs law § 240[1–B][B][5][v] ).
We agree with defendant, however, that the Referee erred in failing to include the value of plaintiff's food stamps in her yearly income for purposes of calculating her child support obligation. Contrary to plaintiff's contention, food stamps are not “public assistance” to be deducted from income pursuant to Domestic Relations Law § 240(1–b)(b)(5)(vii)(E) inasmuch as Social Services Law article 5, which governs public assistance, refers to “public assistance or food stamps” (Social Services Law § 131 [12] ), thereby distinguishing the two ( see generally Matter of Sorokina v. Hansell, 45 A.D.3d 1388, 1389, 846 N.Y.S.2d 592, appeal dismissed10 N.Y.3d 806, 857 N.Y.S.2d 34, 886 N.E.2d 799; Matter of Kolodziejczyk v. Wing, 261 A.D.2d 927, 927–928, 689 N.Y.S.2d 825; Matter of Bryant v. Perales, 161 A.D.2d 1186, 1187, 555 N.Y.S.2d 978, lv. denied76 N.Y.2d 710, 563 N.Y.S.2d 62, 564 N.E.2d 672). Because plaintiff's income does not fall below the poverty income guidelines when the value of her food stamps is included, we modify the judgment by vacating the award of child support, and we remit the matter to Supreme Court to recalculate plaintiff's child support obligation in compliance with the CSSA ( see Lauzonis v. Lauzonis, 105 A.D.3d 1351, 1354, 964 N.Y.S.2d 796).
Finally, we reject defendant's contention that the duration of plaintiff's maintenance award should be reduced from 15 to five years. The Referee considered the appropriate statutory factors ( seeDomestic Relations Law § 236[B][6][a]; Lazar, 124 A.D.3d at 1243, 999 N.Y.S.2d 626) and, under the circumstances, including plaintiff's age, disability, and role as a homemaker for the majority of the parties' marriage, we cannot conclude that the duration of the maintenance award was an abuse of discretion ( see Myers v. Myers, 118 A.D.3d 1315, 1316, 987 N.Y.S.2d 766; Rooney v. Rooney [Appeal No. 3], 92 A.D.3d 1294, 1295, 938 N.Y.S.2d 724, lv. denied19 N.Y.3d 810, 2012 WL 3743855).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the fifth decretal paragraph, and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings.