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

1254
CA 12-00699
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND WHALEN, JJ.


CAROL A. WEINHEIMER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DREW WEINHEIMER, DEFENDANT-RESPONDENT.


ANGE & ANGE, BUFFALO (GRACE MARIE ANGE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (MELISSA A. CAVAGNARO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered June 30, 2011. The judgment, inter alia,
ordered defendant to pay maintenance to plaintiff in the amount of
$600 per month.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the facts and the law by increasing the award
of maintenance to plaintiff to $725 per month for the same term as
that set by Supreme Court, Erie County, and as modified the judgment
is affirmed without costs.

     Memorandum: In this matrimonial action, plaintiff wife contends
that Supreme Court failed to award her a sufficient amount of
maintenance and erred in denying her request for child support on
behalf of the parties’ unemancipated child. Plaintiff further
contends that the court should have awarded her attorney’s fees
following the trial that was held on the issues of maintenance and
child support. We agree with plaintiff that the maintenance award
should be modified, but we otherwise affirm.

     In determining the income of defendant husband for purposes of
awarding maintenance, the court averaged defendant’s income over a
period of years. Although the court did not abuse its discretion in
determining defendant’s income for maintenance purposes in that manner
(see Bragar v Bragar, 277 AD2d 136, 137; Lombardo v Lombardo, 255 AD2d
653, 654-655), we find no basis in the record for the court’s finding
that defendant’s average income was approximately $48,000 per year.
The court admitted in evidence defendant’s pay stubs showing that his
year-to-date earnings in 2010 were $55,068. Defendant’s tax records
for the four prior years reflected gross incomes of $58,999, $63,580,
$53,981, and $63,370. No evidence was admitted concerning defendant’s
income for any other years. Not including 2010 due to incomplete
                                 -2-                          1254
                                                         CA 12-00699

data, defendant’s average income was $59,982. Because the court, in
determining defendant’s maintenance obligation, understated his income
by 20%, we conclude that, based on all of the factors enumerated in
Domestic Relations Law § 236 (B) (6) (a), the maintenance award should
be increased to $725 per month. Plaintiff does not challenge the term
of maintenance as set by the court, and we perceive no basis to
disturb that part of the award.

     We reject plaintiff’s further contention that the court erred in
denying her request for an award of child support. During the
pendency of this action, the parties resided together in the marital
residence. The parties’ only unemancipated child was a 17-year-old
daughter who attended community college and did not live at home. The
daughter worked part-time while attending college, and her tuition was
paid by student loans. Although the daughter returned home for
holidays, she remained in her apartment during the summer and worked
full-time. “[T]he fact that the parties continue to reside together
does not bar [an] award of child support, where . . . there has been a
showing that the award is necessary to maintain the reasonable needs
of the child during the litigation” (Koerner v Koerner, 170 AD2d 297,
298; see Harari v Davis, 59 AD3d 182, 182; see also Salerno v Salerno,
142 AD2d 670, 672). Here, however, plaintiff did not allege, much
less establish, that the daughter’s reasonable needs were not being
met. In fact, the evidence demonstrated that, with a little financial
assistance from both parents, all of the daughter’s bills were being
paid while she attended college and lived on her own. Plaintiff was
therefore not entitled to an award of child support.

     Finally, we reject plaintiff’s contention that the court erred in
failing to award her attorney’s fees at the conclusion of the case
(see Domestic Relations Law § 237 [a]; O’Shea v O’Shea, 93 NY2d 187,
190). As a preliminary matter, we note that, because plaintiff did
not submit documentation identifying the services rendered by her
attorney or the fees incurred, the court was precluded from awarding
attorney’s fees to her (see Cervone v Cervone, 74 AD3d 1268, 1269).
In any event, we conclude that it would have been within the court’s
discretion to deny plaintiff’s request. Although plaintiff earned
only $20,000 annually, she had previously been awarded interim
attorney’s fees, and the court’s award of maintenance, which we hereby
upwardly modify, reduced the disparity in the parties’ incomes.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
