Opinion
May 27, 1988
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Dillon, P.J., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously modified on the law and facts and as modified affirmed with costs to defendant, and matter remitted to Supreme Court, Cayuga County, for further proceedings, in accordance with the following memorandum: In this matrimonial action, each party was granted a divorce on the grounds of cruel and inhuman treatment. The court equitably distributed the parties' real and personal property and plaintiff's podiatry practice was correctly valued according to the capitalization of earnings method (see, Bidwell v Bidwell, 122 A.D.2d 364). The custody and visitation awards are supported in the record (see, Alan G. v Joan G., 104 A.D.2d 147, 152) and the court did not abuse its discretion in refusing to award counsel fees to defendant (see, O'Brien v O'Brien, 66 N.Y.2d 576).
The court erred, however, in denying an award of maintenance to defendant and in ordering that its award of child support to be paid by plaintiff was to be reduced 12 weeks after its decision. In denying maintenance, the court failed properly to consider the parties' preseparation standard of living, defendant's unemployment and her physical custody of the parties' two children (Domestic Relations Law § 236 [B] [6] [a] [1], [6]). Defendant, who holds a Master's degree in social work, left the work force upon the birth of the parties' first child. Thereafter, she maintained the home, reared the children and contributed to the development of plaintiff's podiatry practice.
After nine years of marriage, the parties separated. At the time of trial, defendant was actively seeking employment, but had been unable to secure a position. Nevertheless, the trial court denied an award of maintenance on the basis of her good health, education and projected ability to be self-sufficient. Defendant was left unable to meet her reasonable needs in the circumstances (see, Gannon v Gannon, 116 A.D.2d 1030). Additionally, the court failed to consider defendant's physical custody of the parties' two daughters, aged 3 and 7 (Conner v Conner, 97 A.D.2d 88, 101-102). Since plaintiff acquiesced in, and benefited from, defendant's role as homemaker and mother, an award of maintenance is appropriate to assist defendant in caring for her children in accordance with the preseparation standard of living (see, Rodgers v Rodgers, 98 A.D.2d 386, appeal dismissed 62 N.Y.2d 646). The matter should be remitted to establish an appropriate maintenance award, however, because the record is silent as to defendant's present employment status. On remittal, the trial court should fashion a maintenance award of such amount and duration as is appropriate.
The provision of the decree relating to the reduction of child support after 12 weeks must be deleted. It is based on speculation and is without support in the record. A modification of child support may properly be sought upon a showing of substantial change in circumstances. "Any question about a modification of the amount of maintenance or child support can best be determined in the future to meet the changed conditions" (Lesman v Lesman, 88 A.D.2d 153, 161, appeal dismissed 57 N.Y.2d 956; see also, Bizzarro v Bizzarro, 106 A.D.2d 690, 693).