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

871
CA 10-02433
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


LORI MARCERA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL S. MARCERA, DEFENDANT-RESPONDENT.


WILLKIE FARR & GALLAGHER LLP, NEW YORK CITY (TIMOTHY J. MCGINN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.


     Appeal from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), entered March 3, 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 modified on the law by vacating the 5th, 6th and 15th
decretal paragraphs and as modified the judgment is affirmed without
costs, and the matter is remitted to Supreme Court, Monroe County, for
further proceedings in accordance with the following Memorandum:
Plaintiff appeals from a judgment of divorce that, inter alia,
directed defendant to pay to plaintiff $25 per month in child support,
awarded her no maintenance and distributed the parties’ personal
property. Defendant lost his employment approximately four months
prior to the commencement of the divorce action and was subsequently
incarcerated during the pendency thereof. We agree with plaintiff
that Supreme Court erred in directing defendant to pay the minimum
amount of child support (see Domestic Relations Law § 240 [1-b] [g]),
as well as in awarding plaintiff no maintenance, based solely on
defendant’s unemployment. To the extent that defendant’s financial
hardship is the result of his own wrongful conduct, he is not entitled
to a reduction in his obligation to pay child support (see Matter of
Grettler v Grettler, 12 AD3d 602; Matter of Winn v Baker, 2 AD3d 1169;
see generally Matter of Knights v Knights, 71 NY2d 865, 866-867), nor
is he entitled to evade his obligation to pay maintenance (see Frasca
v Frasca, 213 AD2d 589; Romanous v Romanous, 181 AD2d 872). We
therefore modify the judgment by vacating the amount awarded to
plaintiff for child support and the award of no maintenance to
plaintiff, and we remit the matter to Supreme Court for further
consideration of those issues, following a hearing if necessary.

     We reject plaintiff’s further contention that the court erred in
distributing the parties’ personal property. The court “has great
flexibility in fashioning an equitable distribution of marital assets”
(Torgersen v Torgersen, 188 AD2d 1023, 1023, lv denied 81 NY2d 709),
and we perceive no error in the procedure utilized by the court to
                                 -2-                           871
                                                         CA 10-02433

distribute the disputed items of personal property (see Gelb v Brown,
163 AD2d 189, 193).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
