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

1115
CA 14-00020
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, AND VALENTINO, JJ.


MELISSA LAZAR, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BARRY D. LAZAR, DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 3.)


SHELDON B. BENATOVICH, WILLIAMSVILLE (JAMES P. RENDA OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Erie County (Patrick H. NeMoyer, J.), entered June 10, 2013 in a
divorce action. The judgment, among other things, ordered defendant
to pay child support to plaintiff.

      It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by striking from the 9th decretal
paragraph the phrase “retroactive to December 10, 2012, with the first
installment due on January 10, 2013” and substituting therefor the
phrase “retroactive to June 3, 2009, the date of commencement of the
action,” and by increasing defendant’s child support obligation in the
10th decretal paragraph to $46,101.28 per year, or $3,841.77 per
month, and as modified the judgment is affirmed without costs and the
matter is remitted to Supreme Court, Erie County, for further
proceedings in accordance with the following Memorandum: In appeal
No. 1 in this divorce action, defendant appeals from a “temporary
order” that, among other things, ordered that plaintiff is entitled to
a money judgment in the amount of $98,966.91, effective February 29,
2012, for arrears that accrued because defendant failed to pay
temporary maintenance, child support and various carrying charges and
expenses. In appeal No. 2, defendant appeals from an “order and money
judgment” that awarded plaintiff judgment in the amount of $98,966.91
based on the order in appeal No. 1. In appeal No. 3, defendant
appeals and plaintiff cross-appeals from a judgment of divorce entered
following a nonjury trial. As relevant to the parties’ contentions in
appeal No. 3, the judgment of divorce directed defendant to pay
maintenance for five years retroactive to December 10, 2012, child
support, and a portion of plaintiff’s attorney fees and expert fees;
awarded plaintiff judgment in the amount of $167,425 for defendant’s
failure to pay court-ordered family support and household expenses not
previously reduced to judgment; granted defendant a credit of $138,000
                                 -2-                          1115
                                                         CA 14-00020

for his separate property claim concerning a home he owned prior to
the marriage; and equitably distributed a Swiss bank account and a
limited liability company. In appeal No. 4, defendant appeals from an
order that, among other things, granted plaintiff a judgment for
maintenance arrears in the amount of $70,000, for attorney fees and
expert fees in the sum of $42,176.50, and for a distributive award in
the sum of $658,381.50.

     We note at the outset that the order in appeal No. 1 was subsumed
in the order and judgment in appeal No. 2, and we thus dismiss the
appeal from the order in appeal No. 1 (see Hendryx v Johnson Boys
Ford-Mercury, 309 AD2d 1260, 1261; Chase Manhattan Bank, N.A. v
Roberts & Roberts, 63 AD2d 566, 567).

     We address first defendant’s appeal from the judgment of divorce
in appeal No. 3. Defendant contends that Supreme Court erred both in
ordering maintenance for a duration of five years and in ordering that
the award of maintenance be effective as of December 10, 2012, which
was the last day of trial testimony. “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” (Myers v
Myers, 118 AD3d 1315, 1315 [internal quotation marks omitted]; see
McCarthy v McCarthy, 57 AD3d 1481, 1481-1482). 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 insofar as it concerns the duration of defendant’s
maintenance obligation (see Martin v Martin, 115 AD3d 1315, 1315; cf.
Scala v Scala, 59 AD3d 1042, 1043). We conclude that the court’s
determination to award maintenance for a period of five years was not
an abuse of discretion “inasmuch as the court properly considered the
factors set forth in Domestic Relations Law § 236 (B) (6) (a)” (Scully
v Scully, 104 AD3d 1137, 1138; see Schmitt v Schmitt, 107 AD3d 1529,
1529; McCarthy, 57 AD3d at 1482; cf. Perry v Perry, 101 AD3d 1762,
1762-1763).

     We further conclude, however, that the court erred in ordering
that the award of maintenance be effective as of the last day of trial
testimony. Domestic Relations Law § 236 (B) (6) (a) provides in
relevant part that an order of maintenance “shall be effective as of
the date of the application therefor.” The divorce action was
commenced on June 3, 2009, and there is no dispute that plaintiff
requested an award of maintenance in her summons with notice on that
date. Inasmuch as the statutory language is mandatory, the court
erred in ordering the maintenance award to be retroactive to December
10, 2012 (see Burns v Burns, 84 NY2d 369, 377; Jones v Jones, 92 AD3d
845, 848, lv denied 19 NY3d 805). We thus modify the judgment in
appeal No. 3 by directing that the effective date of the maintenance
award is June 3, 2009 and, because the term of maintenance ended in
2014, we remit the matter to Supreme Court to determine whether
further modification of the amount of the maintenance award is
warranted and to recalculate any arrears owed by, or credits due to,
defendant. In view of our decision in appeal No. 3, we also modify
the order in appeal No. 4 by vacating the second ordering paragraph,
which awarded maintenance arrears in the amount of $70,000.
                                 -3-                          1115
                                                         CA 14-00020

     Defendant further contends with respect to his appeal from the
judgment in appeal No. 3 that the court erred in determining that the
Swiss bank account was marital property rather than his separate
property or that of his parents and thus exempt from equitable
distribution. We reject that contention inasmuch as defendant failed
to rebut the statutory presumption that the account was marital
property (see Domestic Relations Law § 236 [B] [1] [c]; Swett v Swett,
89 AD3d 1560, 1561-1562). The evidence at trial established that the
account was opened, and substantial deposits were made, during the
marriage. Furthermore, defendant’s contention that the account was
his parents’ property is “contrary to a position taken [by him] in . .
. [amended] income tax return[s]” (Mahoney-Buntzman v Buntzman, 12
NY3d 415, 422). We likewise reject defendant’s contention in appeal
No. 3 that the court abused its discretion in awarding plaintiff a
portion of her attorney fees and expenses, particularly in light of
the disparity in the incomes of the parties and defendant’s conduct in
prolonging the litigation (see Swett, 89 AD3d at 1562; McBride-Head v
Head, 23 AD3d 1010, 1011). Upon our review of the record, we perceive
no error in the court’s calculation of defendant’s interim partial
payment of such fees and expenses.

     We next address plaintiff’s cross appeal from the judgment in
appeal No. 3 wherein she contends, inter alia, that the court erred in
its calculation of child support. We agree with plaintiff that the
court erred in its calculation of the combined parental income
pursuant to Domestic Relations Law § 240 (1-b) (c) (1) by deducting
the amount of maintenance from defendant’s gross income without
providing for an adjustment in child support upon the termination of
maintenance (§ 240 [1-b] [b] [5] [vii] [C]; Salvato v Salvato, 89 AD3d
1509, 1509-1510, lv denied 18 NY3d 811), and by adding the amount of
maintenance to plaintiff’s income (see Frost v Frost, 49 AD3d 1150,
1152; see also Huber v Huber, 229 AD2d 904, 905). We conclude that
plaintiff’s imputed net income is $6,000, defendant’s imputed net
income is $2,000,000, the combined parental income is $2,006,000 and
the pro rata shares are 0.3% from plaintiff and 99.7% from defendant.
We therefore further modify the judgment in appeal No. 3 by increasing
defendant’s child support obligation to $46,101.28 per year, or
$3,841.77 per month.

     Plaintiff’s remaining contentions with respect to the judgment in
appeal No. 3 are without merit. We reject plaintiff’s contention that
the court abused its discretion in not applying the Child Support
Standards Act to the combined parental income in excess of the
statutory cap up to $350,000. The record establishes that the court
considered the appropriate factors in applying an income cap of
$272,000, rather than $350,000 (see Domestic Relations Law § 240 [1-b]
[c] [2], [3]; [f]; Martin, 115 AD3d at 1315). Contrary to plaintiff’s
further contention, the court did not err in awarding defendant a
credit of $138,000 for his separate property claim related to his home
that he owned prior to the marriage (see Zanger v Zanger, 1 AD3d 865,
867; cf. Johnson v Johnson, 277 AD2d 923, 925, lv dismissed 96 NY2d
792). Finally, also without merit is plaintiff’s contention that the
court erred in accepting the capitalization rate of defendant’s expert
over that of her expert in valuing a limited liability company owned
                                 -4-                          1115
                                                         CA 14-00020

by the parties. “[T]here is no uniform rule for fixing the value of a
going business for equitable distribution purposes” (Burns v Burns, 84
NY2d 369, 375) and, here, we conclude that the court’s acceptance of
the capitalization rate of defendant’s expert to value that relatively
new business as of the date of commencement of the action was not an
abuse of discretion (see Hiatt v Hiatt, 6 AD3d 1014, 1015; see
generally Scala v Scala, 59 AD3d 1042, 1043).




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
