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

702
CA 14-02273
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


RICHARD E. SAYERS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JANICE M. SAYERS, DEFENDANT-RESPONDENT.


HANDELMAN WITKOWICZ & LEVITSKY, LLP, ROCHESTER (STEVEN M. WITKOWICZ OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

MULDOON, GETZ & RESTON, ROCHESTER (MARGARET MCMULLEN RESTON OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Elma A.
Bellini, J.), entered May 21, 2014. The order, among other things,
denied the motion of plaintiff for a downward modification of
maintenance.

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

     Memorandum: Plaintiff husband appeals from an order that denied
his motion seeking, inter alia, a downward modification of his
maintenance obligation and counsel fees. We note at the outset that,
while we agree with plaintiff that Supreme Court misapplied our
holding in Foti v Foti (114 AD3d 1207) in denying that part of the
motion seeking a downward modification of his maintenance obligation,
the error is of no moment. In Foti, we held that the wife was not
entitled to partial summary judgment determining that certain property
was separate property because there was an issue of fact whether she
had commingled her interests in the property with marital property.
In so holding, we noted that the parties had filed a joint federal tax
return in which the wife reported her interest in the properties as
tax losses, and we wrote that “ ‘[a] party to litigation may not take
a position contrary to a position taken in an income tax return’ ”
(id. at 1208). Here, contrary to the court’s determination, plaintiff
was not taking a position contrary to a position taken on previously
filed tax returns. Plaintiff and his current wife filed joint income
tax returns, listing their income and earnings. At the hearing on his
motion, plaintiff attempted to distinguish his income and earnings
from those of his current wife. He at no time contradicted
information contained in the tax return. In any event, we note that,
regardless of the court’s erroneous reliance on Foti, a court may
appropriately consider the assets of a party’s current spouse in
determining whether to modify the party’s maintenance obligation (see
                                 -2-                           702
                                                         CA 14-02273

e.g. Chisholm v Chisholm, 138 AD2d 829, 830-831).

     We reject plaintiff’s contention that the court erred in refusing
to modify his maintenance obligation. Generally, where there is a
separation agreement that remains in force, “no modification of a
prior order or judgment incorporating the terms of said agreement
shall be made as to maintenance without a showing of extreme hardship
on either party” (Domestic Relations Law § 236 [B] [9] [b] [1]; see
Leo v Leo, 125 AD3d 1319, 1319; Martin v Martin, 80 AD3d 579, 580).
The parties to a separation agreement, however, “may contractually
provide for a support modification on a lesser standard than legally
required” (Glass v Glass, 16 AD3d 120, 121; see Martin, 80 AD3d at
580; Heller v Heller, 43 AD3d 999, 1000), and here the parties did so.
The parties’ separation agreement provides that, should the husband
establish that he has suffered a substantial decrease in his income by
reason of circumstances beyond his control, rendering him unable to
meet his obligation of support, he “shall be entitled to an
adjustment” of his maintenance payments. Even assuming, arguendo,
that plaintiff established that he had suffered a substantial decrease
in his income by reason of circumstances beyond his control, we
nevertheless conclude that he failed to establish that he is unable to
meet his maintenance obligations. According to the evidence adduced
at the hearing, plaintiff gifted $60,000 to $70,000 to his adult
children as the cash value of an insurance policy that he canceled.
He gave his youngest child money every year, ranging from $5,000 to
$12,500. Plaintiff and his current wife rent a home on Canandaigua
Lake “not far from where [they] live.” Moreover, plaintiff has
substantial assets, including a second home in Florida, and he
transferred an annuity in his name to an account in his current wife’s
name (see Gerringer v Gerringer, 152 AD2d 652, 653).

     Finally, we reject plaintiff’s contention that he is entitled to
an award of counsel fees. “Because [plaintiff] has sufficient funds
and income with which to pay [his] counsel fees, the court did not err
in denying that part of [his] . . . motion seeking such fees” (Bennett
v Bennett, 13 AD3d 1080, 1083, lv denied 6 NY3d 708; see Burns v Burns
[appeal No. 2], 238 AD2d 886, 886).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
