Tedesco v. Tedesco

41 A.D.3d 1246, 838 N.Y.S.2d 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Niagara County (Vincent E. Doyle, J.), entered February 24, 2006 in a divorce action. The judgment, among other things, ordered defendant to pay maintenance and child support.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the 16th decretal paragraph and as modified the judgment is affirmed without costs.

Memorandum: We affirm the judgment in this divorce action in all but one respect. We agree with defendant that Supreme Court erred in awarding plaintiff her share of defendant’s military pension pursuant to Majauskas v Majauskas (61 NY2d 481 [1984]) from the date of commencement of the action until the date of the Referee’s report. In doing so, the court impermissibly double-counted the income from defendant’s military pension because the court previously had considered that income in ordering defendant, by way of temporary orders, to maintain the marital residence for the benefit of plaintiff and the parties’ children and to provide plaintiff with funds for household expenses and fuel expenses for her vehicle (see generally Corasanti v Corasanti, 296 AD2d 831, 833-834 [2002]). We therefore modify the judgment accordingly. Present—Gorski, J.P., Martoche, Centra, Fahey and Peradotto, JJ.