Gina v. Gina

248 A.D.2d 353, 669 N.Y.S.2d 831, 1998 N.Y. App. Div. LEXIS 2037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1998
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant wife appeals from an order of the Supreme Court, Queens County (Gartenstein, J.H.O.), entered January 30, 1997, which, in effect, denied immediate equitable distribution of the plaintiff husband’s pension, and directed (1) that the plaintiff husband pay maintenance in the sum of only $20 per month retroactive to the commencement of the action and (2) that maintenance arrears due under a prior order of the Family Court, Queens County, be adjusted nunc pro tunc in accordance with the modified maintenance award of only $20 per month.

Ordered that the order is modified by (1) deleting the provision thereof directing that the maintenance award of $20 per month be retroactive to the commencement of the action and substituting therefor a provision that the maintenance award of $20 per month be effective as of the date of the entry of the order, and (2) deleting the provision thereof providing that arrears accumulated under the order of the Family Court, Queens County, be adjusted nunc pro tunc in accordance with the retroactive award; as so modified, the order is affirmed, without costs or disbursements.

The court did not err in its determination regarding equitable distribution and the amount of maintenance (see, Domestic Relations Law § 236 [B] [5] [d] [13]; [B] [6] [a] [11]). However, the court did err in directing that the maintenance award, which was less than the amount payable pursuant to a prior spousal support order, be made retroactive to the commencement of the action (see, Rodgers v Rodgers, 98 AD2d 386).

Bracken, J. P., Santucci, Altman and McGinity, JJ., concur.