Opinion
November 15, 1988
Appeal from the Supreme Court, Onondaga County, Miller, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Lawton, JJ.
Judgment unanimously modified in the exercise of discretion and as modified affirmed without costs, in accordance with the following memorandum: On appeal from a judgment awarding plaintiff a divorce, defendant challenges those provisions awarding custody of the parties' youngest child to plaintiff, distributing the marital property, awarding plaintiff $125 per week in maintenance and $250 per week in child support (since reduced to $225 per week), and ordering defendant to pay plaintiff's attorney's fees and expert's fees of approximately $7,000. In the exercise of our discretion, we reduce the award of permanent maintenance by $25 per week, based on our finding that the court overestimated defendant's earning capacity and plaintiff's needs and underestimated plaintiff's earning capacity. We also modify the maintenance award to place a five-year limit on its payment. Although this was a marriage of long duration, plaintiff has been in the work force full time since 1983 and, in the four years prior to the divorce, earned an average of about $24,000 annually. At the time of the divorce, the parties' youngest child was 13 years old. In these circumstances, it is appropriate to place a time limit of five years on defendant's maintenance obligation.
We also modify the judgment to delete the provision ordering defendant to pay plaintiff's attorney's and expert's fees. There is no basis for such award in the record, in particular, no showing that plaintiff could not afford to pay her own litigation expenses.
We have considered defendant's remaining contentions and conclude that they are without merit.