                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 16, 2016                      521664
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JEANANNE KELLY,
                      Appellant,
     v                                       MEMORANDUM AND ORDER

JAMES ELWOOD KELLY,
                    Respondent.
________________________________


Calendar Date:    March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                              __________


     John Ferrara, Monticello, for appellant.

                              __________


Devine, J.

      Appeal from a judgment of the Supreme Court (McGuire, J.),
entered March 5, 2015 in Sullivan County, ordering, among other
things, equitable distribution of the parties' marital property,
upon a decision of the court.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 1994 and have one unemancipated
child who is primarily in the wife's care. The parties separated
in 2011, and the wife commenced this action for divorce in 2014.
The parties stipulated to the grounds for divorce and, because
issues of custody and child support had largely been resolved in
Family Court, the nonjury trial revolved around matters of
equitable distribution and maintenance. Supreme Court thereafter
issued a judgment that granted the divorce and ordered the
husband to make biweekly child support payments of $333.76 to the
wife. Supreme Court further distributed the marital property and
debts and directed the husband to pay $500 a month in maintenance
for 60 months which, after accounting for the wife's obligation
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to reimburse the husband for certain debts and sold assets,
resulted in a net payment to the wife of $367.40 a month in
spousal maintenance. The wife now appeals.

      The wife challenges the equitable distribution award in
various respects, but that "determination will not be disturbed
absent an abuse of discretion or failure to consider the
requisite statutory factors" (Williams v Williams, 99 AD3d 1094,
1096 [2012]; see Robinson v Robinson, 133 AD3d 1185, 1187
[2015]). Supreme Court considered the applicable factors and
discovered that there were few positive assets to distribute
beyond the husband's pension, as the value of the marital
residence had been outstripped by substantial unpaid property
taxes and debt secured by a mortgage on it. The husband has
exclusively lived at the residence since 2012, has taken steps to
begin paying off the back taxes and is indisputably in a better
financial position than the wife to tackle the various debts
associated with it. Supreme Court therefore directed that the
husband take sole ownership of the residence if he assumed full
responsibility for future carrying costs and refinanced the
mortgage in his name alone; if he did not do so by a set date,
the residence was to be sold and the net proceeds or losses would
belong to the husband. Despite the conditional award of the
residence to the husband, Supreme Court properly found the wife
responsible for part of the back taxes relating to the time that
she lived there (see Cornish v Eraca-Cornish, 107 AD3d 1322, 1323
[2013]; Chabbott v Chabbott, 306 AD2d 368, 369 [2003]). Supreme
Court likewise did not abuse its discretion in declining to
credit the wife for separate funds that she applied toward the
down payment on the residence, as that contribution has been
swamped by the flood of marital debt related to the residence
(see Arnone v Arnone, 36 AD3d 1170, 1172 [2007]). The wife
complains of other aspects of the equitable distribution award as
well but, suffice it to say, we discern nothing in it to
constitute an abuse of discretion.

      The wife further challenges the award of maintenance and,
inasmuch as Supreme Court thoroughly reviewed the statutory
factors, its maintenance award will not be disturbed absent an
abuse of discretion (see Domestic Relations Law § 236 [B] [former
(6)]; Robinson v Robinson, 133 AD3d at 1186; Cornish v Eraca-
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Cornish, 107 AD3d at 1324). The parties are exiting a 19-year
marriage as middle-aged high school graduates who are in good
health. That being said, the husband earned roughly $60,000 a
year plus an unknown amount of "off the books" income, while the
wife earned approximately $28,000, and Supreme Court found that a
significant increase in the wife's earning capacity was unlikely
given her employment history and age. While we are cognizant
that the parties face financial difficulties that place the
predivorce standard of living out of reach and render them both
responsible for substantial debts, Supreme Court, in our view,
gave inadequate consideration to the length of the marriage, the
large disparity between the parties' incomes and the unlikelihood
that the wife will be able to close that gap through her own
efforts. This conclusion is further supported by the fact that
the parties' unemancipated child resides with the wife, the
husband's live-in girlfriend helps pay for their living expenses,
and the husband performs "off the books" work on a somewhat
regular basis. A recalibration of the award is necessary to
strike the "delicate balance of each party's needs and means or
ability to pay" and, as such, we increase the husband's monthly
maintenance obligation to $632.60 (McCaffrey v McCaffrey, 107
AD3d 1106, 1107 [2013] [internal quotation marks, brackets and
citations omitted]). The effect of that increase is to require a
net maintenance payment of $500 a month to the wife, to be paid
in biweekly installments.

      The wife lastly faults Supreme Court for not including "off
the books" income earned by the husband in calculating his child
support obligation, and Supreme Court did, in fact, find that the
husband had earned such income in making its award of
maintenance. The wife did not ask Supreme Court to consider this
income in calculating the husband's child support obligation but,
inasmuch as the husband acknowledged that he earned some amount
of unreported income, "we exercise our discretion to review the
record and to make independent findings in this regard"
(Lounsbury v Lounsbury, 300 AD2d 812, 817 [2002]; see Matter of
Mammone v Yellen, 224 AD2d 883, 886 [1996]). The trial testimony
on this issue is minimal but sufficient to permit the finding
that the husband earns at least $1,440 in additional annual
income; imputing that amount to the husband increases his gross
annual income to $61,924 (see Matter of Mammone v Yellen, 224
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AD2d at 886). Accordingly, after factoring in that increase and
the proportional change in both parties' incomes occasioned by
the payment of maintenance (see Nichols v Nichols, 19 AD3d 775,
779 [2005]), we modify the child support award to the extent of
providing that the husband pay $332.32 every two weeks to the
wife.

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.



      ORDERED that the judgment is modified, on the law and the
facts, without costs, by reversing so much thereof as ordered
defendant to pay plaintiff maintenance in the amount of $500 a
month for 60 months commencing in January 2015 and child support
in the amount of $333.76 every two weeks; defendant is directed
to pay maintenance in the amount of $632.60 per month for a
period of 60 months commencing in January 2015 and child support
in the amount of $332.32 every two weeks; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
