Summer v. Summer

85 N.Y.2d 1014 (1995) 654 N.E.2d 1218 630 N.Y.S.2d 970

Pepi S. Summer, Appellant,
v.
Donald L. Summer, Respondent.

Court of Appeals of the State of New York.

Decided June 13, 1995.

Beckerman & Beckerman, Rochester (Gerald Beckerman and Betsy L. Album of counsel), for appellant.

Brown & Kelly, Buffalo (Philip B. Abramowitz of counsel), and Frank A. Aloi, Mendon, for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

MEMORANDUM.

The order of the Appellate Division should be modified, without costs, by reinstating that portion of Supreme Court's judgment that awarded plaintiff-wife lifetime maintenance and, as so modified, affirmed.

The Appellate Division's reliance on Hartog v Hartog (194 AD2d 286, 295, mod 85 N.Y.2d 36) and Harmon v Harmon (173 AD2d 98, 108) for its award of durational maintenance to the wife based on her ability to become self-supporting fails in the light of this Court's recent modification of Hartog (85 N.Y.2d 36, supra). We held that Domestic Relations Law § 236 (B) (6) (a) requires the court to consider the marital standard of living in making maintenance awards, among other factors (85 NY2d, at 51-52, supra). Although there is no automatic entitlement to lifetime maintenance, the Appellate Division failed entirely to consider the factor of the parties' marital standard of living. Thus, we modify that Court's order with respect to the duration of maintenance.

Because Supreme Court's determination that the wife is incapable of becoming self-supporting at a level roughly commensurate with the marital standard of living more nearly comports with the weight of the evidence, we reinstate its judgment insofar as it awarded the wife permanent maintenance.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.