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

525
CA 13-01285
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


TERESA E. MYERS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BRADLEY J. MYERS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LISA A. SADINSKY, ROCHESTER, FOR DEFENDANT-APPELLANT.

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered November 9, 2012 in a divorce action. The
judgment, inter alia, directed defendant to pay maintenance to
plaintiff.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by ordering that defendant is entitled
to claim the parties’ children as dependents for tax purposes,
provided that he remains current in his child support and maintenance
obligations, and as modified the judgment is affirmed without costs.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
of divorce and, in appeal No. 2, he appeals from a subsequent order
requiring that he pay a portion of plaintiff’s attorney’s fees.

     With respect to the judgment in appeal No. 1, we reject
defendant’s contention that Supreme Court abused its discretion in
awarding maintenance for a 10-year period. It is well established
that, “ ‘[a]s a general rule, the amount and duration of maintenance
are matters committed to the sound discretion of the trial court’ ”
(Frost v Frost, 49 AD3d 1150, 1150-1151; see Gately v Gately, 113 AD3d
1093, 1093; Rooney v Rooney [appeal No. 3], 92 AD3d 1294, 1295, lv
denied 19 NY3d 810), and we perceive no abuse of discretion here. As
the court noted, there is a “vast discrepancy” in the incomes of the
parties, with plaintiff’s sole source of income consisting of Social
Security Disability (SSD) payments (see Gilliam v Gilliam, 109 AD3d
871, 872). During most of the 13-year marriage, plaintiff raised the
parties’ two children while defendant was the sole wage earner (see
Carpenter v Carpenter, 202 AD2d 813, 814-815). The parties enjoyed a
relatively comfortable standard of living during the marriage. In
setting the duration of maintenance, the court determined that, even
if plaintiff were able to find a job, she would never approach her
                                 -2-                           525
                                                         CA 13-01285

pre-divorce standard of living, while defendant “clearly can.”
Plaintiff testified at trial that she is permanently disabled as a
result of bilateral carpal tunnel syndrome and a severed nerve in her
left hand. Although plaintiff did not submit medical evidence or
testimony concerning her disability, we conclude that the undisputed
fact that the Social Security Administration determined that she was
disabled as of 2000 and that she continues to receive SSD, coupled
with her testimony, is sufficient to support the court’s maintenance
determination (see Mazzone v Mazzone, 290 AD2d 495, 496; Battinelli v
Battinelli, 174 AD2d 503, 504; cf. Grasso v Grasso, 47 AD3d 762, 764;
Palestra v Palestra, 300 AD2d 288, 289).

     Contrary to the further contention of defendant in appeal No. 1,
the court properly set forth the statutory grounds for termination of
maintenance in its bench decision, which is incorporated in and
attached to the judgment of divorce (see Domestic Relations Law §
248). We agree with defendant, however, that he should be allowed to
claim the parties’ children as dependents for tax purposes, provided
that he remains current in his child support and maintenance
obligations (see Rooney, 92 AD3d at 1296; see also Ochoa v Ochoa, 159
AD2d 285). We therefore modify the judgment in appeal No. 1
accordingly.

     Finally, we reject defendant’s contention in appeal No. 2 that
the court erred in ordering defendant to pay a portion of plaintiff’s
attorney’s fees in light of, inter alia, the gross disparity in the
parties’ incomes (see Alecca v Alecca, 111 AD3d 1127, 1130; Rooney, 92
AD3d at 1296).




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