Opinion
CA 01-01930
February 1, 2002.
Appeal from a judgment of Supreme Court, Jefferson County (Gilbert, J.), entered April 24, 2001, which directed defendant to pay retroactive maintenance.
HRABCHAK GEBO, P.C., WATERTOWN (MARK G. GEBO OF COUNSEL), FOR DEFENDANT-APPELLANT.
CONBOY, McKAY, BACHMAN KENDALL, LLP, WATERTOWN (FLOYD J. CHANDLER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing defendant's prospective maintenance obligation from $650 to $400 biweekly and as modified the judgment is affirmed without costs.
Memorandum:
Defendant appeals from an interlocutory order directing him to pay retroactive maintenance to plaintiff in the amount of $2,000 per month for 19 months, dating back to commencement of the divorce action; permitting defendant to defray retroactive maintenance by paying plaintiff $635 per month for five years; directing defendant to pay prospective maintenance of $650 biweekly; and accepting the appraisal of plaintiff's expert concerning the value of defendant's tool collection at $13,025 for purposes of equitable distribution. Although the order is subsumed in the final judgment of divorce subsequently entered and the appeal properly lies from the judgment, in the exercise of our discretion we deem the appeal to be from the judgment ( see, CPLR 5520 [c]; Boone v. Hopkins, 288 A.D.2d 916 [decided Nov. 9, 2001]; Westfall v. County of Erie, 281 A.D.2d 979).
We reject defendant's contention that Supreme Court erred in accepting the appraisal of plaintiff's expert over defendant's own testimony concerning the value of the tool collection. We further reject defendant's challenge to the court's award of retroactive maintenance ( see generally, Domestic Relations Law § 236 [B] [6]; Magyar v. Magyar [appeal No. 2] , 272 A.D.2d 941, 942). We conclude that the court abused its discretion, however, in directing defendant to pay prospective maintenance of $650 biweekly. Taking into account the parties' respective needs and resources, we modify the judgment by reducing defendant's prospective maintenance obligation from $650 to $400 biweekly ( see, Southwick v. Southwick [appeal No. 1] , 202 A.D.2d 996, 997, lv dismissed 83 N.Y.2d 1000; DiCaprio v. DiCaprio, 162 A.D.2d 944, 946, lv denied 77 N.Y.2d 802).