SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

839 

CA 14-01791 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

 

AMY PETROCI, PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

MICHAEL PETROCI, DEFENDANT-APPELLANT-RESPONDENT.

WILLIAM R. HITES, BUFFALO, FOR DEFENDANT-APPELLANT-RESPONDENT. 

BOUVIER PARTNERSHIP LLP, BUFFALO (MELISSA H. THORE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court, Erie

County (John F. O’Donnell, J.), entered December 17, 2013 in a divorce

action. The order, among other things, awarded plaintiff a money

judgment against defendant for maintenance arrears.

It is hereby ORDERED that said cross appeal is unanimously

dismissed and the order is modified on the law by vacating the seventh

ordering paragraph and directing that the modification of child

support be retroactive to February 14, 2012, and as modified the order

is affirmed without costs, and the matter is remitted to Supreme

Court, Erie County, for further proceedings in accordance with the

following memorandum: Defendant former husband appeals, and plaintiff

former wife cross-appeals, from an order that, inter alia, awarded

plaintiff a money judgment against defendant for maintenance arrears,

denied defendant’s request for reimbursement from plaintiff for health

insurance premiums paid by him, and granted defendant a downward

modification of his child support obligation. We note at the outset

that we dismiss plaintiff’s cross appeal inasmuch as she seeks only an

affirmance of the order (see Loveless Family Trust v Koenig, 77 AD3d

1447, 1448).

Defendant contends that Supreme Court erred in failing to order

plaintiff to reimburse him for amounts he spent to provide health

insurance coverage for the parties’ children at times when the

parties’ Property Settlement and Separation Agreement (Agreement)

required that plaintiff provide such coverage. We reject that

contention. Although we agree with defendant that the Agreement

required plaintiff to provide health insurance coverage under the

circumstances, we nevertheless agree with the court that defendant

failed to establish his entitlement to reimbursement inasmuch as he

“failed to present sufficient proof as to how much he . . . actually

paid for insurance premiums for the children as opposed to himself”,

i.e., he failed to establish the price differential between a family
-2- 839 

CA 14-01791 

plan and an individual plan. Contrary to defendant’s further

contention, the court properly defined the “duration of [the]

marriage” as the period between the date of marriage and the date of

divorce for purposes of calculating maintenance under the Agreement,

and the court was not required to apply the contrary definition of

“[l]ength of marriage” applicable to an award of temporary maintenance

under Domestic Relations Law § 236-B (5-a) (b) (3).

We agree with defendant that the court erred in not directing

that the child support modification be retroactive to the date of his

application therefor (see Domestic Relations Law § 240 [1] [j]; Hayek

v Hayek, 63 AD3d 1598, 1599). We therefore modify the order

accordingly. We further agree with defendant that the court erred in

failing to adjust the parties’ respective pro-rata shares of health

insurance expenses, uninsured health care expenses, and child care

expenses when it granted defendant’s request for a downward

modification of child support (see § 240 [1-b] [c] [4], [5]; see also

§ 240 [1] [d]; see generally Griggs v Griggs, 44 AD3d 710, 713-714;

Matter of Lewis v Redhead, 37 AD3d 469, 470; Rzepecki v Rzepecki, 6

AD3d 1134, 1135). Consequently, we remit the matter to Supreme Court

to calculate any arrears owed by, or credits due to, defendant (see

Lazar v Lazar, 124 AD3d 1242, 1244; Hayek, 63 AD3d at 1599; Sherman v

Sherman, 304 AD2d 744, 745). 

Finally, “giving due deference to the court’s credibility

determinations” (Leo v Leo, 125 AD3d 1319, 1319; see Flash v Fudella,

64 AD3d 1242, 1243), we perceive no error in the award of

extracurricular and child care expenses. 

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court