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

1098
CA 15-00151
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


JO ANN D’AMATO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH D’AMATO, DEFENDANT-RESPONDENT.


HOGAN WILLIG, PLLC, AMHERST (STEVEN G. WISEMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BENNETT, SCHECHTER, ARCURI & WILL, LLC, BUFFALO (CAROL A. CONDON OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Henry
J. Nowak, Jr., J.), entered June 23, 2014 in a divorce action. The
judgment, inter alia, equitably distributed the marital assets of the
parties.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by increasing the award of attorney’s
fees to $10,000, and by vacating the 20th decretal paragraph and
directing defendant to pay toward the cost of his son’s college
education 50% of the cost of an education at a college in the State
University of New York system, and as modified the judgment is
affirmed without costs and the matter is remitted to Supreme Court,
Erie County, to calculate that amount.

     Memorandum: Plaintiff appeals from a judgment of divorce that,
among other things, awarded plaintiff durational maintenance, awarded
plaintiff $5,000 in attorney’s fees, and determined that defendant had
no obligation to contribute to the cost of the college education of
the parties’ son.

     We reject plaintiff’s contention that she should have been
awarded nondurational maintenance. “As a general rule, the amount and
duration of maintenance are matters committed to the sound discretion
of the trial court” (Gately v Gately, 113 AD3d 1093, 1093, lv
dismissed 23 NY3d 1048 [internal quotation marks omitted]; see
McCarthy v McCarthy, 57 AD3d 1481, 1481-1482), and we perceive no
abuse of discretion here. Although the authority of this Court in
determining issues of maintenance is as broad as that of the trial
court, we decline to substitute our discretion for that of the trial
court with respect to the duration of defendant’s maintenance
obligation (see Martin v Martin, 115 AD3d 1315, 1315; see generally
Scala v Scala, 59 AD3d 1042, 1043).
                                 -2-                          1098
                                                         CA 15-00151

     Plaintiff further contends that Supreme Court erred with respect
to the distributive award by permitting defendant to recoup his
overpayment of child support and maintenance during the pendency of
the action. We note with respect to child support that, although
there is a strong public policy against restitution or recoupment of
child support overpayments (see Johnson v Chapin, 12 NY3d 461, 466,
rearg denied 13 NY3d 888; Matter of Annette M.R. v John W.R., 45 AD3d
1306, 1307), here the record establishes that the court did not award
defendant credit for overpayment of child support. Contrary to
plaintiff’s contention with respect to maintenance, we conclude that
the court did not abuse its discretion in giving defendant a credit
for his overpayment of maintenance during the pendency of the action
(see Johnson, 12 NY3d at 466).

     We agree with plaintiff, however, that the court abused its
discretion in awarding her only $5,000 in attorney’s fees, inasmuch as
defendant “is the monied spouse and there is no evidence in this
record that [plaintiff] engaged in dilatory tactics” (Murphy v Murphy,
126 AD3d 1443, 1447; see Domestic Relations Law § 237 [a]; Mann v
Mann, 244 AD2d 928, 929-930). We therefore modify the judgment by
increasing the award of attorney’s fees to $10,000.

     We also agree with plaintiff that the court erred in refusing to
direct defendant to contribute to the cost of the son’s education at a
private college, and we therefore further modify the judgment
accordingly. Upon consideration of the parents’ educational
backgrounds, the child’s scholastic ability, and the parents’ ability
to pay (see Francis v Francis, 72 AD3d 1594, 1595; Reiss v Reiss, 56
AD3d 1293, 1294), we conclude that “[defendant’s] contribution should
[be] 50% of what it would annually cost to send his son to a college
in the State University of New York (hereinafter SUNY) system” (Matter
of Holliday v Holliday, 35 AD3d 468, 469; see Reiss, 56 AD3d at 1294),
with a credit for the $5,000 that defendant contributed to the son’s
college expenses pursuant to a prior order. Inasmuch as we are unable
to determine the annual cost of attending a college in the SUNY system
from the record on appeal, we remit the matter to Supreme Court to
calculate the amount of defendant’s contribution (see Holliday, 35
AD3d at 469). We note that, upon remittal, the court may consider
whether defendant is entitled to a credit against child support for
college expenses, “ ‘taking into account the needs of the custodial
parent to maintain a household and provide certain necessaries’ ”
(Juhasz v Juhasz [appeal No. 2], 92 AD3d 1209, 1212).

     Finally, we reject plaintiff’s contention that the court erred in
refusing to order defendant to pay plaintiff the sum of $4,650, for a
debt incurred to purchase a vehicle for the parties’ daughter. It is
undisputed that defendant owes the debt to a third party for an
expense incurred after the commencement of the divorce action, and
thus the court properly refused to order him to pay that amount to
plaintiff. “Expenses incurred after the commencement of an action for
a divorce are, in general, the responsibility of the party who
                                 -3-                             1098
                                                            CA 15-00151

incurred the debt” (Epstein v Messner, 73 AD3d 843, 845).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
