         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1117
CA 11-01069
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND PERADOTTO, JJ.


KAREN L. SALVATO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LARRY P. SALVATO, DEFENDANT-APPELLANT.


LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL),
FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), entered November 12, 2010 in a divorce action. The
judgment, inter alia, granted plaintiff a divorce.

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

     Memorandum: Defendant appeals from a judgment of divorce that,
inter alia, directed him to pay maintenance and child support.
Contrary to defendant’s contention, Supreme Court properly determined
the amount of child support. In determining a parent’s income for
purposes of child support, the court shall deduct from income any
maintenance paid to a spouse “provided the order or agreement provides
for a specific adjustment . . . in the amount of child support payable
upon the termination of . . . maintenance to such spouse” (Domestic
Relations Law § 240 [1-b] [b] [5] [vii] [C]). Here, there was no
provision for an adjustment of child support upon the termination of
maintenance, and thus there was no basis for the court to deduct
maintenance from defendant’s income in determining the amount of child
support (cf. Schiffer v Schiffer, 21 AD3d 889, 890-891; Kessinger v
Kessinger, 202 AD2d 752, 753-754). We further conclude that, although
defendant testified at trial that his current earnings were less than
his earnings from the previous year, the court did not abuse its
discretion in using his income from the previous year to calculate
child support. Defendant failed to provide a consistent explanation
for the decrease in his income from his employment at his family’s
business.

     Contrary to defendant’s further contention, the court did not
abuse its discretion in awarding maintenance to plaintiff of $1,000 a
month for a period of four years (see McCarthy v McCarthy, 57 AD3d
1481, 1481-1482). “[T]he amount and duration of maintenance are
                                 -2-                          1117
                                                         CA 11-01069

matters committed to the sound discretion of the trial court”
(Boughton v Boughton, 239 AD2d 935, 935). Here, the court considered
all the factors set forth in Domestic Relations Law § 236 (B) (6) (a),
and properly balanced plaintiff’s reasonable needs against defendant’s
ability to pay (see Torgersen v Torgersen, 188 AD2d 1023, 1024, lv
denied 81 NY2d 709).

     The court properly awarded plaintiff a credit for her separate
property interest in the marital residence in the amount of $25,000.
“It is well settled that a spouse is entitled to a credit for his or
her contribution of separate property toward the purchase of the
marital residence” (Juhasz v Juhasz, 59 AD3d 1023, 1024, lv dismissed
12 NY3d 848; see Hendershott v Hendershott, 299 AD2d 880, 880-881;
Judson v Judson, 255 AD2d 656, 657). The uncontroverted evidence
established that plaintiff used $25,000 that she received from her
mother as a down payment for the marital residence. We have
considered defendant’s remaining contentions and conclude that they
are without merit.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
