SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

191 

CA 11-00530 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ. 

 

KIMBERLY B. ROONEY, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

JOHN E. ROONEY, DEFENDANT-APPELLANT. 

(APPEAL NO. 3.)

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER

(RICHARD GLEN CURTIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (John

M. Owens, J.), entered November 4, 2010 in a divorce action. The

judgment, inter alia, granted plaintiff a divorce, equitably

distributed the parties’ property and directed defendant to pay

maintenance and support to plaintiff. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by adding a paragraph indicating that

defendant is entitled to claim the parties’ children as dependents for

tax purposes, provided that he remains current in his child support

and maintenance obligations and as modified the judgment is affirmed

without costs. 

Memorandum: In appeal Nos. 1 and 2, defendant appeals from

orders entered prior to the judgment of divorce. In appeal No. 3,

defendant appeals from the judgment of divorce, and in appeal No. 4,

defendant appeals and plaintiff cross-appeals from a subsequent order

requiring that defendant pay a portion of plaintiff’s attorneys’ fees

with respect to the appeals in this action. We note at the outset

that appeal Nos. 1 and 2 must be dismissed inasmuch as the orders in

those appeals are subsumed in the final judgment of divorce (see

Huther v Sickler, 21 AD3d 1303; Hughes v Nussbaumer, Clarke & Velzy,

140 AD2d 988). 

With respect to the judgment in appeal No. 3, we reject

defendant’s contention that the Referee erred in setting the term and

amount of maintenance. “[T]he amount and duration of maintenance are

matters committed to the sound discretion of the trial court”

(Boughton v Boughton, 239 AD2d 935, 935), based upon the court’s

consideration of the factors set forth in Domestic Relations Law § 236

(B) (6) (a). In light of the long duration of the marriage and the

disparity in the parties’ earning capacities, it cannot be said that
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CA 11-00530 

the Referee abused his discretion in awarding plaintiff maintenance of

$2,500 per month for approximately 11 years. Given plaintiff’s

undisputed health issues, which may necessitate further surgery, we

reject defendant’s contention that, for purposes of calculating both

maintenance and child support, the Referee should have imputed fulltime minimum wage income to plaintiff. 

Defendant further contends in appeal No. 3 that the Referee erred

in calculating the amount of maintenance arrears. That contention is

not properly before us inasmuch as the Referee declined to award

maintenance arrears to plaintiff, and defendant therefore is not

aggrieved by that portion of the Referee’s determination (see Flynn v

Flynn, 244 AD2d 993). We also reject defendant’s contention in appeal

No. 3 that, in calculating the amount of child support, the Referee

erred in failing to impute income to plaintiff based on cash gifts

that she received from her mother (see Domestic Relations Law § 240

[1-b] [b] [5] [iv] [D]). The evidence at trial supported the

Referee’s finding that the cash gifts were sporadic in nature, rather

than regular and expected (see Rostropovich v Guerrand-Hermes, 18 AD3d

211). We agree with defendant, however, that he should be allowed to

claim the parties’ children as dependents for tax purposes, provided

that he remains current in his child support and maintenance

obligations. We therefore modify the judgment accordingly. 

Contrary to defendant’s contention in appeal Nos. 3 and 4 and

plaintiff’s contention on her cross appeal in appeal No. 4, Supreme

Court properly ordered defendant to pay a portion of plaintiff’s

attorneys’ fees incurred in the trial of this action and on appeal. 

In light of the gross disparity in the parties’ income, the awards of

fees to plaintiff were appropriate (see Domestic Relations Law § 237

[a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881). “ ‘The evaluation

of what constitutes reasonable [attorneys’] fees is a matter within

the sound discretion of the trial court’ ” (Benzaken v Benzaken, 21

AD3d 391, 392), and we conclude that the court did not abuse its

discretion in this case. 

Contrary to defendant’s further contention in appeal No. 3, we

conclude that the Referee properly denied on procedural grounds his

post-trial motion seeking, inter alia, to “correct[ ]” various alleged

errors in the Referee’s decision. Inasmuch as defendant’s contention

that the Referee should have directed plaintiff to remove defendant’s

name from the loans against the former marital residence was raised

only in that post-trial motion, that contention is not properly before

us. In any event, we conclude that it is without merit. 

Entered: February 17, 2012 Frances E. Cafarell

Clerk of the Court