SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
607
CA 12-01300
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
KATHERINE M. ALMONTE, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT J. ALMONTE, DEFENDANT-APPELLANT.
ANTHONY J. DIMARTINO, JR., OSWEGO (CARL L. SCHMIDT OF COUNSEL), FOR
DEFENDANT-APPELLANT.
DENNIS S. LERNER, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County
(Kevin G. Young, J.), entered September 15, 2011. The judgment, inter
alia, directed defendant to pay maintenance, temporary child support
arrears, and temporary maintenance arrears.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the amount of temporary
maintenance arrears specified in the twelfth ordering paragraph to
$1,875, and as modified the judgment is affirmed without costs.
Memorandum: Defendant appeals from a judgment of divorce that,
inter alia, directed him to pay maintenance, temporary child support
arrears, and temporary maintenance arrears. We reject defendant’s
contention that Supreme Court abused its discretion in setting the
amount of maintenance; rather, “[t]he record establishes that the
court appropriately considered [plaintiff’s] ‘reasonable needs and
predivorce standard of living in the context of the other enumerated
statutory factors’ set forth in Domestic Relations Law § 236 (B) (6)
(a)” (Frost v Frost, 49 AD3d 1150, 1151, quoting Hartog v Hartog, 85
NY2d 36, 52). Contrary to defendant’s further contention, the court
also properly directed the amount of maintenance to increase at the
time of the emancipation of the parties’ youngest child. That event
was an “imminent and measurable change” that was to occur less than
six months following entry of the divorce judgment (Majauskas v
Majauskas, 61 NY2d 481, 494). We agree with defendant, however, that
the court erred in calculating the amount of arrears owed pursuant to
a prior temporary order, which directed him to pay maintenance and
child support. The amount designated as temporary child support
arrears in the eleventh ordering paragraph of the judgment, $4,810, is
included, incorrectly, within the amount designated as temporary
maintenance arrears in the twelfth ordering paragraph of the judgment,
$6,685. We therefore modify the judgment accordingly. Plaintiff
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CA 12-01300
failed to take a cross appeal from the judgment and we thus do not
address her contention that the court erred in failing to make the
awards of child support and maintenance retroactive to the date of
commencement of the action (see Oliver v Oliver, 70 AD3d 1428, 1430;
Brenner v Brenner, 52 AD3d 322, 323).
Entered: July 5, 2013 Frances E. Cafarell
Clerk of the Court