Opinion
66 CA 21-01727
06-09-2023
Donna RENZI, Plaintiff-Respondent, v. Thomas RENZI, Defendant-Appellant.
JENNIFER M. LORENZ, ORCHARD PARK, FOR DEFENDANT-APPELLANT. FERON POLEON, LLP, AMHERST (KELLY A. FERON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
JENNIFER M. LORENZ, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
FERON POLEON, LLP, AMHERST (KELLY A. FERON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed except insofar as defendant challenges the maintenance award, the judgment is modified on the law by vacating the second decretal paragraph, and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $5,700 per month in maintenance until the husband reaches the age of 67. Although the judgment was entered upon the husband's default and no appeal lies from a judgment entered on default, the appeal nevertheless "brings up for our review matters which were the subject of contest before the court," i.e., the maintenance award ( Matter of King v. King , 145 A.D.3d 1613, 1614, 43 N.Y.S.3d 822 [4th Dept. 2016] [internal quotation marks omitted]; see Matter of Rottenberg v. Clarke , 144 A.D.3d 1627, 1627, 41 N.Y.S.3d 848 [4th Dept. 2016] ; see generally James v. Powell , 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967], rearg denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 [1967] ).
On appeal, the husband contends that Supreme Court erred in awarding the wife maintenance above the presumptive amount under Domestic Relations Law § 236 (B) (6) without following the requirements of that statute. We agree and further conclude that the court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2] ).
"[I]n any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the provisions" set forth in the statute ( Domestic Relations Law § 236 [B] [6] [a] ; see Hughes v. Hughes , 198 A.D.3d 1170, 1173, 156 N.Y.S.3d 444 [3d Dept. 2021] ). In setting the amount of the award, the provisions of Domestic Relations Law § 236 (B) (6) require that the court first determine the presumptive amount of maintenance pursuant to the statutory formulas in paragraph (c) and, second, determine whether other factors under paragraphs (d) and (e) support deviating from the presumptive amount (see Mahoney v. Mahoney , 197 A.D.3d 638, 639, 152 N.Y.S.3d 727 [2d Dept. 2021] ; Iannazzo v. Iannazzo [appeal No. 2], 197 A.D.3d 959, 961-962, 152 N.Y.S.3d 756 [4th Dept. 2021] ). Where there is a deviation from the presumptive amount reached by application of the relevant formula, the court should explain the reasons for that deviation (see generally Severny v. Severny , 210 A.D.3d 419, 419, 175 N.Y.S.3d 729 [1st Dept. 2022] ). "[T]he court need not analyze and apply each and every factor set forth in the statute," but it "must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance" ( Gordon-Medley v. Medley , 160 A.D.3d 1146, 1147, 74 N.Y.S.3d 412 [3d Dept. 2018] ; see Gutierrez v. Gutierrez , 193 A.D.3d 1363, 1364, 143 N.Y.S.3d 275 [4th Dept. 2021] ; Johnston v. Johnston , 156 A.D.3d 1181, 1184, 68 N.Y.S.3d 178 [3d Dept. 2017], appeal dismissed 31 N.Y.3d 1126, 81 N.Y.S.3d 350, 106 N.E.3d 733 [2018], lv denied 32 N.Y.3d 1053, 88 N.Y.S.3d 408, 113 N.E.3d 464 [2018] ).
Here, there is no dispute that the court awarded maintenance above the presumptive amount under the statute. The court, however, did not state what it found the wife's income to be or set out the presumptive amount of maintenance owed under the statutory formula. Further, it failed to "set forth the factors it considered and the reasons for its decision in writing or on the record" ( Domestic Relations Law § 236 [B] [6] [d] [3] ), and therefore "failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award" ( Gutierrez , 193 A.D.3d at 1364, 143 N.Y.S.3d 275 ; see generally Barrett v. Barrett , 175 A.D.3d 1067, 1068, 108 N.Y.S.3d 626 [4th Dept. 2019] ).
Because we are unable to determine whether "the amount and duration of the maintenance awarded reflects an appropriate balancing of [the wife's] needs and [the husband's] ability to pay" ( Myers v. Myers , 87 A.D.3d 1393, 1394, 930 N.Y.S.2d 124 [4th Dept. 2011] [internal quotation marks omitted]), we modify the judgment by vacating the second decretal paragraph, and we remit the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision ( Domestic Relations Law § 236 [B] [6] [e] [1], [2] ; [f] [2]).