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
EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN A SEQRA REVIEW; PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND A NEGATIVE DECLARATION AFTER PERMITS WERE ISSUED.
DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER BASED SOLELY UPON THE FACT HE WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN PENNSYLVANIA VIOLATED DUE PROCESS; HOWEVER THE MATTER WAS REMITTED TO DETERMINE WHETHER ANY OF THE PENNSYLVANIA FELONIES WOULD HAVE CONSTITUTED A SEXUALLY VIOLENT OFFENSE IN NEW YORK, A QUESTION NOT RAISED BEFORE COUNTY COURT (FOURTH DEPT). ​
THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT). ​
EVIDENCE OF ALLEGED FRAUD IN THE ACKNOWLEDGMENT OF SIGNATURES WAS NOT SUFFICIENT TO SUPPORT THE INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT). ​
Consequential Damages Related to a Parcel of Land Sold Prior to the Taking Should Not Have Been Granted by the Court of Claims
ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).
BECAUSE OF UNAMBIGUOUS STATUTORY LANGUAGE, DEFENDANT’S MICHIGAN CONVICTION WAS DEEMED A “SEXUALLY VIOLENT OFFENSE” EVEN THOUGH THE SAME CONDUCT IN NEW YORK WOULD NOT QUALIFY AS A “SEXUALLY VIOLENT OFFENSE;” STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).
DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

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...