Baumgart v. Baumgart

Appellate Division of the Supreme Court of New York

Baumgart v. Baumgart

199 A.D.2d 1049, 605 N.Y.S.2d 610, 1993 N.Y. App. Div. LEXIS 12664

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1993

StatusPublished

Cited by5 cases

This text of 199 A.D.2d 1049 (Baumgart v. Baumgart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Baumgart v. Baumgart, 199 A.D.2d 1049, 605 N.Y.S.2d 610, 1993 N.Y. App. Div. LEXIS 12664 (N.Y. Ct. App. 1993).

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Opinion

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant appeals, as limited by her brief, from so much of the final judgment of divorce as awarded her maintenance in the amount of $140 per week for a period of five years or until she remarries, does not attend school for a continuous year, or becomes employed for 30 hours or more per week.

Supreme Court failed to set forth the factors it considered and the reasons for its decision (see, Domestic Relations Law § 236 [B] [6] [a], [b]; Glasberg v Glasberg, 104 AD2d 788, 789-790). Our Court may overlook that technical deficiency, however, because the record provides an adequate evidentiary basis for appellate review of the court’s decision (see, Hoyt v Hoyt, 166 AD2d 800, 801; Anglin v Anglin, 148 AD2d 833, 834).

Although questions of maintenance are addressed to the sound discretion of the trial court in the first instance (Domestic Relations Law § 236 [B] [6]; Shew v Shew, 193 AD2d 1142; Torgersen v Torgersen, 188 AD2d 1023, 1024, lv denied 81 NY2d 709), the authority of this Court is as broad as that of [1050]*1050the trial court (Majauskas v Majauskas, 61 NY2d 481, 493-494) . In view of the fact that this has been a long-term marriage of 32 years and because defendant has some physical problems that limit her employability, we conclude that maintenance should be extended to defendant’s sixty-second birthday at the rate fixed by the court. Modification of that amount can be addressed in the future if circumstances change (see, Lesman v Lesman, 88 AD2d 153, 161). Those provisions of the judgment relating to termination of maintenance upon the happening of a particular future event are unauthorized and must be deleted (see, Majauskas v Majauskas, supra, at 494-495) . (Appeal from Judgment of Supreme Court, Wyoming County, Doyle, Jr., J.—Divorce.) Present—Callahan, J. P., Green, Fallon and Davis, JJ.

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Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant appeals, as limited by her brief, from so much of the final judgment of divorce as awarded her maintenance in the amount of $140 per week for a period of five years or until she remarries, does not attend school for a continuous year, or becomes employed for 30 hours or more per week.

Supreme Court failed to set forth the factors it considered and the reasons for its decision (see, Domestic Relations Law § 236 [B] [6] [a], [b]; Glasberg v Glasberg, 104 AD2d 788, 789-790). Our Court may overlook that technical deficiency, however, because the record provides an adequate evidentiary basis for appellate review of the court’s decision (see, Hoyt v Hoyt, 166 AD2d 800, 801; Anglin v Anglin, 148 AD2d 833, 834).

Although questions of maintenance are addressed to the sound discretion of the trial court in the first instance (Domestic Relations Law § 236 [B] [6]; Shew v Shew, 193 AD2d 1142; Torgersen v Torgersen, 188 AD2d 1023, 1024, lv denied 81 NY2d 709), the authority of this Court is as broad as that of [1050]*1050the trial court (Majauskas v Majauskas, 61 NY2d 481, 493-494) . In view of the fact that this has been a long-term marriage of 32 years and because defendant has some physical problems that limit her employability, we conclude that maintenance should be extended to defendant’s sixty-second birthday at the rate fixed by the court. Modification of that amount can be addressed in the future if circumstances change (see, Lesman v Lesman, 88 AD2d 153, 161). Those provisions of the judgment relating to termination of maintenance upon the happening of a particular future event are unauthorized and must be deleted (see, Majauskas v Majauskas, supra, at 494-495) . (Appeal from Judgment of Supreme Court, Wyoming County, Doyle, Jr., J.—Divorce.) Present—Callahan, J. P., Green, Fallon and Davis, JJ.

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199 A.D.2d 1049, 605 N.Y.S.2d 610, 1993 N.Y. App. Div. LEXIS 12664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baumgart-v-baumgart-nyappdiv-1993.

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