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

804
CA 14-01566
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


DONNA M. LATTUCA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOHN M. LATTUCA, DEFENDANT-APPELLANT.


STEINER & BLOTNIK, BUFFALO (RICHARD J. STEINER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BADACK & HARTNETT, SILVER CREEK (DONNA MARIE HARTNETT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John M.
Curran, J.), entered December 17, 2013 in a divorce action. The
judgment, insofar as appealed from, directed defendant to pay
maintenance to plaintiff and directed plaintiff to pay child support
in the amount of $300 per year to defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the fifth decretal
paragraph, 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: Defendant
husband appeals from a judgment of divorce that, inter alia, awarded
plaintiff wife maintenance and ordered her to pay child support to
defendant. Defendant contends that the Referee, whose Report and
Recommendation was confirmed by Supreme Court, erred in excluding
plaintiff’s maintenance award from her income in calculating her child
support obligation. We reject that contention, inasmuch as “there is
no authority in the Child Support Standards Act (CSSA) for adding
future maintenance payments to the recipient’s income for the purpose
of calculating child support” (Huber v Huber, 229 AD2d 904, 904; see
Lazar v Lazar, 124 AD3d 1242, 1244-1245; Burns v Burns, 70 AD3d 1501,
1502-1503). We likewise reject defendant’s contention that the
Referee erred in declining to impute additional income to plaintiff
based on her ability to work. There is no evidence that plaintiff
“has reduced resources or income in order to reduce or avoid the
parent’s obligation for child support” (Domestic Relations Law § 240
[1-b] [b] [5] [v]).

     We agree with defendant, however, that the Referee erred in
failing to include the value of plaintiff’s food stamps in her yearly
income for purposes of calculating her child support obligation.
Contrary to plaintiff’s contention, food stamps are not “public
                                 -2-                           804
                                                         CA 14-01566

assistance” to be deducted from income pursuant to Domestic Relations
Law § 240 (1-b) (b) (5) (vii) (E) inasmuch as Social Services Law
article 5, which governs public assistance, refers to “public
assistance or food stamps” (Social Services Law § 131 [12]), thereby
distinguishing the two (see generally Matter of Sorokina v Hansell, 45
AD3d 1388, 1389, appeal dismissed 10 NY3d 806; Matter of Kolodziejczyk
v Wing, 261 AD2d 927, 927-928; Matter of Bryant v Perales, 161 AD2d
1186, 1187, lv denied 76 NY2d 710). Because plaintiff’s income does
not fall below the poverty income guidelines when the value of her
food stamps is included, we modify the judgment by vacating the award
of child support, and we remit the matter to Supreme Court to
recalculate plaintiff’s child support obligation in compliance with
the CSSA (see Lauzonis v Lauzonis, 105 AD3d 1351, 1354).

     Finally, we reject defendant’s contention that the duration of
plaintiff’s maintenance award should be reduced from 15 to five years.
The Referee considered the appropriate statutory factors (see Domestic
Relations Law § 236 [B] [6] [a]; Lazar, 124 AD3d at 1243) and, under
the circumstances, including plaintiff’s age, disability, and role as
a homemaker for the majority of the parties’ marriage, we cannot
conclude that the duration of the maintenance award was an abuse of
discretion (see Myers v Myers, 118 AD3d 1315, 1316; Rooney v Rooney
[appeal No. 3], 92 AD3d 1294, 1295, lv denied 19 NY3d 810).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
