A Bronx judge erred in applying the presumptive formula for spousal maintenance in a divorce case where the parties continued to live together and have shared carrying costs, a unanimous Appellate Division, First Department panel ruled on Tuesday.
Then-Acting Supreme Court Justice Nelida Malave-Gonzalez (See Profile), who is now the Bronx Surrogate, last year ordered defendant Gladstone Francis to pay plaintiff Marcia Francis $868.66 in biweekly spousal maintenance, applying the presumptive formula for spousal maintenance set forth in Domestic Relations Law §236 (B)(5-a).
The First Department panel vacated that award, finding the circumstances of the case—the two continued to share a residence and carrying costs, which were largely paid for by Gladstone Francis—meant that the lower court could not rely entirely on the formula.
Instead of asking for a specific amount as maintenance, Marcia Francis had asked for an order requiring Gladstone Francis to continue paying the carrying costs. The panel ruled that the lower court should have considered that request.
The panel also said that, in calculating any maintenance award, the court should credit Gladstone Francis for half the carrying costs of the property and consider “any other factors it may consider in deviating from the presumptive award, including plaintiff’s medical condition and her inability to work.”
Marcia Francis is represented by Roberta Horne. Gladstone Francis is represented by Christopher W. Edwards.
The case is Francis v. Francis, 12458/11.