        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

665
CA 13-00623
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


LISA M. GUY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ERIC E. GUY, DEFENDANT-APPELLANT.


JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

LAW OFFICES OF JOHN P. PIERI, BUFFALO (JOHN P. PIERI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Frederick J. Marshall, J.), entered January 9, 2013 in a divorce
action. The judgment, among other things, adjudged that neither party
shall pay spousal maintenance to the other.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant husband appeals from a judgment of divorce
that, insofar as appealed from, confirmed in relevant part the report
of the Matrimonial Referee (Referee) appointed to hear and report with
respect to the issues of maintenance and equitable distribution. In
the judgment, Supreme Court ordered that neither party shall pay
spousal maintenance to the other and equitably distributed the marital
debt. Contrary to defendant’s contention, the court did not abuse its
discretion in failing to award him maintenance. The Referee properly
considered the factors set forth in Domestic Relations Law § 236 (B)
(6) (a) in determining that an award of maintenance to defendant was
not warranted (see Hartog v Hartog, 85 NY2d 36, 51; Sofien v Noel, 60
AD3d 1387, 1387), and the court properly confirmed that part of the
Referee’s report. Although plaintiff earns more than defendant and
although defendant pays child support, neither fact, by itself or in
combination with the other, requires the court to award maintenance to
defendant (see generally § 236 [B] [6] [a]).

     Defendant further contends that the court erred in failing to
allocate between the parties certain marital debt consisting of credit
card balances in his name. Defendant, however, failed to submit
evidence that a balance transfer to one credit card and the
outstanding balances on two other credit cards reflected marital
expenses (see Lopez v Saldana, 309 AD2d 655, 656). The record
therefore supports the Referee’s finding, as confirmed by the court,
that those amounts did not constitute marital debt to be allocated
                                 -2-                           665
                                                         CA 13-00623

(see Cabeche v Cabeche, 10 AD3d 441, 441; see also Greenwald v
Greenwald, 164 AD2d 706, 720-721, lv denied 78 NY2d 855).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
