Jalowiec v. Jalowiec

Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered April 19, 2006 in a divorce action. The order and judgment, among other things, provided that maintenance is retroactive to the date of commencement of the action. It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by providing that maintenance shall be retroactive to the date of plaintiffs application for maintenance and as modified the order and judgment is affirmed without costs, and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: In this divorce action, defendant contends that, because plaintiff did not request maintenance until she served a “Statement of Proposed Disposition,” Supreme Court erred in making the award of maintenance retroactive to the date of commencement of the action. We agree (see Domestic Relations Law § 236 [B] [6] [a]; Beach v Beach, 158 AD2d 848 [1990]; Culnan v Culnan, 142 AD2d 805, 807-808 [1988], Iv dismissed 73 NY2d 994 [1989]), and we therefore modify the order and judgment accordingly. We are unable to determine on the record before us the date of plaintiffs application, and we therefore remit the matter to Supreme Court for that determination. We otherwise affirm the order and judgment for reasons stated in the decision at Supreme Court. Present—Scudder, P.J., Martoche, Smith, Centra and Peradotto, JJ.