You are here: / / THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON...
, ,

THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating the maintenance award and remitting for recalculation, determined Supreme Court did not set forth the factors for the maintenance calculation as required by Domestic Relations Law 236:

Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. On appeal, he contends that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). We agree and further conclude that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in section 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination … . The determination must also “reflect[] an appropriate balancing of [the wife’s] needs and [the husband’s] ability to pay” … .

… [T]he court stated that it awarded plaintiff $750 per week—an amount deviating from the statutory guidelines—for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award … , the length of the parties’ marriage is not a factor enumerated in section 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities … . Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award … . Thus, the court failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. Gutierrez v Gutierrez, 2021 NY Slip Op 02662, Fourth Dept 4-30-21

 

You might also like
PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT).
INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).
QUESTIONS OF FACT ABOUT WHETHER THE INSURER WAS TIMELY NOTIFIED OF THE ASBESTOS-EXPOSURE CLAIM AND WHEN THE INJURY-IN-FACT OCCURRED PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).
EVEN WHERE THERE IS EVIDENCE DEFENDANT INTENTIONALLY AIDED IN THE COMMISSION OF THE UNDERLYING FELONY, THE TRIAL JUDGE MUST INSTRUCT THE JURY ON THE FELONY-MURDER AFFIRMATIVE DEFENSE WHERE THERE IS EVIDENCE THE DEFENDANT DID NOT PARTICIPATE IN THE ACTS CAUSING THE VICTIM’S DEATH AND THERE IS EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE DEFENSE (FOURTH DEPT).
DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT A SIDEBAR DISCUSSION WITH A PROSPECTIVE JUROR; UPON RETRIAL AN ADULT WITNESS SHOULD NOT TESTIFY WHILE ACCOMPANIED BY A THERAPY DOG (FOURTH DEPT).
ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.
Mental Health Counseling Can Not Be Made a Condition of Visitation and Court Can Not Delegate Authority to Determine When Visitation Should Be Resumed
DEFENDANT, WHO WAS CONVICTED OF STATUTORY RAPE (NO FORCE) WHEN HE WAS 18 IN 1996, SHOULD HAVE BEEN CLASSIFIED A LEVEL ONE, NOT LEVEL TWO, RISK (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THERE WAS PROBABLE CAUSE TO ARREST PLANTIFF FOR TRESPASS AFTER SHE WAS ASKED... IN THIS LIEN LAW DISPUTE OVER PAYMENT PURSUANT TO CONSTRUCTION CONTRACTS, DEFENDANTS...