SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

525 

CA 13-01285 

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

 

TERESA E. MYERS, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

BRADLEY J. MYERS, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

LISA A. SADINSKY, ROCHESTER, FOR DEFENDANT-APPELLANT. 

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Oswego County (James

W. McCarthy, J.), entered November 9, 2012 in a divorce action. The

judgment, inter alia, directed defendant to pay maintenance to

plaintiff. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by ordering 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 No. 1, defendant appeals from a judgment

of divorce and, in appeal No. 2, he appeals from a subsequent order

requiring that he pay a portion of plaintiff’s attorney’s fees. 

With respect to the judgment in appeal No. 1, we reject

defendant’s contention that Supreme Court abused its discretion in

awarding maintenance for a 10-year period. It is well established

that, “ ‘[a]s a general rule, the amount and duration of maintenance

are matters committed to the sound discretion of the trial court’ ”

(Frost v Frost, 49 AD3d 1150, 1150-1151; see Gately v Gately, 113 AD3d

1093, 1093; Rooney v Rooney [appeal No. 3], 92 AD3d 1294, 1295, lv

denied 19 NY3d 810), and we perceive no abuse of discretion here. As

the court noted, there is a “vast discrepancy” in the incomes of the

parties, with plaintiff’s sole source of income consisting of Social

Security Disability (SSD) payments (see Gilliam v Gilliam, 109 AD3d

871, 872). During most of the 13-year marriage, plaintiff raised the

parties’ two children while defendant was the sole wage earner (see

Carpenter v Carpenter, 202 AD2d 813, 814-815). The parties enjoyed a

relatively comfortable standard of living during the marriage. In

setting the duration of maintenance, the court determined that, even

if plaintiff were able to find a job, she would never approach her
-2- 525 

CA 13-01285 

pre-divorce standard of living, while defendant “clearly can.” 

Plaintiff testified at trial that she is permanently disabled as a

result of bilateral carpal tunnel syndrome and a severed nerve in her

left hand. Although plaintiff did not submit medical evidence or

testimony concerning her disability, we conclude that the undisputed

fact that the Social Security Administration determined that she was

disabled as of 2000 and that she continues to receive SSD, coupled

with her testimony, is sufficient to support the court’s maintenance

determination (see Mazzone v Mazzone, 290 AD2d 495, 496; Battinelli v

Battinelli, 174 AD2d 503, 504; cf. Grasso v Grasso, 47 AD3d 762, 764;

Palestra v Palestra, 300 AD2d 288, 289).

Contrary to the further contention of defendant in appeal No. 1,

the court properly set forth the statutory grounds for termination of

maintenance in its bench decision, which is incorporated in and

attached to the judgment of divorce (see Domestic Relations Law §

248). 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 (see Rooney, 92 AD3d at 1296; see also Ochoa v Ochoa, 159

AD2d 285). We therefore modify the judgment in appeal No. 1

accordingly.

Finally, we reject defendant’s contention in appeal No. 2 that

the court erred in ordering defendant to pay a portion of plaintiff’s

attorney’s fees in light of, inter alia, the gross disparity in the

parties’ incomes (see Alecca v Alecca, 111 AD3d 1127, 1130; Rooney, 92

AD3d at 1296).

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court