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

218
CA 13-00545
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


DEREK MARTIN, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COLLEEN MARTIN, DEFENDANT-RESPONDENT-APPELLANT.


HARRIS BEACH PLLC, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

MATTAR, D’AGOSTINO & GOTTLIEB, LLP, BUFFALO (DIANA CAVALL OF COUNSEL),
FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Erie County (Henry J. Nowak, Jr., J.), entered December 20, 2012 in a
divorce action. The judgment, inter alia, awarded defendant
maintenance and child support.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by providing that plaintiff’s net
income is $953,600.93 and that the combined parental income is
$983,792.93 and by providing in the fourth decretal paragraph that
there shall be an adjustment of child support upon the termination of
plaintiff’s maintenance obligation and as modified the judgment is
affirmed without costs and the matter is remitted to Supreme Court,
Erie County, to determine the amount of that adjustment in accordance
with the following Memorandum: Plaintiff appeals and defendant cross-
appeals from a judgment of divorce that, inter alia, directed
plaintiff to pay maintenance and child support and denied defendant’s
request for a directive requiring that plaintiff post security
pursuant to Domestic Relations Law § 243. Contrary to plaintiff’s
contention, the maintenance award is not excessive either in its
amount or duration. “Although ‘[a]s a general rule, the amount and
duration of maintenance are matters committed to the sound discretion
of the trial court, . . . the authority of this Court in determining
issues of maintenance is as broad as that of [Supreme Court]’ ” (Knope
v Knope, 103 AD3d 1256, 1257). There is no abuse of discretion here
(see Gately v Gately, 113 AD3d 1093, 1093), and we decline to
substitute our discretion for that of the court (cf. Knope, 103 AD3d
at 1257).

     Turning to the issue of child support, we conclude that the court
erred in its calculation of the combined parental income (see Domestic
Relations Law § 240 [1-b] [c] [1]), and we therefore modify the
judgment by providing that plaintiff’s net income is $953,600.93 and
                                 -2-                          218
                                                        CA 13-00545

that the combined parental income is $983,792.93. Contrary to
plaintiff’s further contention, the record establishes that the court
articulated a proper basis for applying the Child Support Standards
Act to the combined parental income in excess of the statutory cap
(see § 240 [1-b] [c] [2], [3]; Wideman v Wideman, 38 AD3d 1318, 1319;
Corasanti v Corasanti, 296 AD2d 831, 831). We also conclude, however,
that the court erred in failing to order that child support be
adjusted upon the termination of maintenance, pursuant to Domestic
Relations Law § 240 (1-b) (b) (5) (vii) (C) (see Ripka v Ripka, 77
AD3d 1384, 1386; Schiffer v Schiffer, 21 AD3d 889, 890-891). We
therefore further modify the judgment by providing in the fourth
decretal paragraph that there shall be an adjustment of child support
upon the termination of plaintiff’s maintenance obligation to
defendant, and we remit the matter to Supreme Court to determine,
following a hearing if necessary, the proper amount of that adjustment
(see Ripka, 77 AD3d at 1386). Contrary to plaintiff’s contention, the
court properly required him to maintain a policy of life insurance to
secure his child support and maintenance obligations (see § 236 [B]
[8] [a]; Gately, 113 AD3d at 1094).

     With respect to defendant’s cross appeal, we conclude that the
court properly refused to require plaintiff to post security (see
Domestic Relations Law § 243; cf. Brinckerhoff v Brinckerhoff, 53 AD3d
592, 593).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
