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McCarthy v. McCarthy

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

DELLA M. MCCARTHY, PLAINTIFF-RESPONDENT,
v.
STEPHEN D. MCCARTHY, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 27, 2007 in a divorce action. The judgment, insofar as appealed from, awarded plaintiff durational maintenance and a share of a certain retirement account of defendant.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

Defendant appeals from a judgment of divorce that, inter alia, awarded plaintiff durational maintenance and a share of defendant's 401(k) retirement account pursuant to Majauskas v Majauskas (61 NY2d 481). "As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court" (Boughton v Boughton, 239 AD2d 935, 935) and, contrary to defendant's contention, we perceive no abuse of discretion with respect to the award of maintenance. The record establishes that Supreme Court properly considered the factors set forth in Domestic Relations Law § 236 (B) (6) (a) in fashioning a maintenance award that "reflects an appropriate balancing of plaintiff's needs and defendant's ability to pay" (Torgersen v Torgersen, 188 AD2d 1023, 1024, lv denied 81 NY2d 709). We further conclude that the court did not abuse its discretion in awarding plaintiff a share of defendant's 401(k) retirement account in accordance with the Majauskas formula in light of, inter alia, the extensive commingling of assets and liabilities during the marriage and defendant's wasteful dissipation of both marital property and plaintiff's separate property (see generally Berge v Berge, 159 AD2d 960).

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