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

1411
CA 12-00808
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


COLLEEN A. DALY PERRY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH J. PERRY, DEFENDANT-RESPONDENT.


CLAIR A. MONTROY, III, ORCHARD PARK, FOR PLAINTIFF-APPELLANT.


     Appeal from a judgment of the Supreme Court, Erie County (Shirley
Troutman, J.), entered July 25, 2011 in a divorce action. The
judgment, among other things, awarded plaintiff maintenance.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified in the exercise of discretion by awarding
plaintiff maintenance in the sum of $1,000 per month for a period of
10 years retroactive to June 23, 2009 and as modified the judgment is
affirmed without costs and the matter is remitted to Supreme Court,
Erie County, to recalculate the amount of retroactive maintenance due
from that date in accordance with the following Memorandum: In this
divorce action, plaintiff appeals from a judgment that, among other
things, awarded her maintenance for eight years in the sum of $500 per
month for four years and thereafter in the sum of $440 per month.
Plaintiff contends that the award of maintenance was unreasonably low
and should have been nondurational or, at a minimum, extended beyond
eight years.

     Although “[a]s a general rule, the amount and duration of
maintenance are matters committed to the sound discretion of the trial
court” (Boughton v Boughton, 239 AD2d 935, 935; see Scala v Scala, 59
AD3d 1042, 1043; Frost v Frost, 49 AD3d 1150, 1150-1151), “this
Court’s authority in determining issues of maintenance is as broad as
that of the trial court” (Scala, 59 AD3d at 1043). Here, we conclude
that Supreme Court improvidently exercised its discretion in directing
defendant to pay maintenance for a period of eight years and in sums
that, combined with plaintiff’s disability income, leave her at an
income level where she could become a public charge. Considering all
of the evidence presented in this case, including the uncontroverted
testimony of plaintiff concerning her disability, her receipt of
Social Security disability benefits, the disparity in the parties’
incomes, plaintiff’s health, her lack of work history during the
marriage, the distribution of marital debts and assets, and
defendant’s waiver of child support from plaintiff, the correct sum
which is $300 annually pursuant to the Child Support Standards Act, we
conclude that defendant’s obligation to pay maintenance should
                                 -2-                          1411
                                                         CA 12-00808

continue for a period of 10 years rather than eight years (see Rindos
v Rindos, 264 AD2d 722, 723). We further conclude that an award in
the sum of $1,000 per month comports with the intended purpose of
durational maintenance, i.e., “to provide the economically-
disadvantaged spouse with an opportunity to achieve independence”
(Sass v Sass, 276 AD2d 42, 48). We therefore modify the judgment
accordingly. We note that, at the conclusion of the period of
maintenance, plaintiff is not precluded from making an application to
modify the judgment to continue maintenance if she has not become
self-supporting (see id.).

     Finally, we further modify the judgment to make the award of
maintenance retroactive to June 23, 2009, the date of the application
therefor (see Burns v Burns, 84 NY2d 369, 377; Kelly v Kelly, 19 AD3d
1104, 1107, appeal dismissed 5 NY3d 847, reconsideration denied 6 NY3d
803), and we remit the matter to Supreme Court for a determination of
the amount of retroactive maintenance and whether such arrears are to
be paid “in one lump sum or periodic sums” (Magyar v Magyar [appeal
No. 2], 272 AD2d 941, 942) and/or pursuant to an income execution or
Spousal Support Only Income Withholding Order.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
