Opinion
CA 04-01055.
December 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered August 7, 2003 in a divorce action. The judgment, among other things, determined maintenance and child support and distributed the marital property.
Before: Green, J.P., Pine, Hurlbutt, Martoche and Smith, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by providing in the fourth decretal paragraph that maintenance shall terminate upon the death of either party or the marriage of defendant or until modified by court order and as modified the judgment is affirmed without costs.
Memorandum: The judgment on appeal provides that plaintiff's maintenance obligation in the amount of $8,000 per month shall terminate upon the death of either party or upon defendant's remarriage. Because it is impossible to predict the income of plaintiff after he retires or defendant's earning capacity at that time, we modify that part of the judgment by adding "or until modified by court order" ( see DiFilippo v. DiFilippo, 262 AD2d 1070, 1071). We otherwise affirm for the reasons stated in the decision at Supreme Court.