Opinion
April 10, 1995
Appeal from the Supreme Court, Kings County (Rigler, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the court's equitable distribution of the marital property was supported by the record. The court set forth all the factors it considered and the reasons for its determination (see, Domestic Relations Law § 236 [B] [5]; O'Brien v O'Brien, 66 N.Y.2d 576), including the fact that the plaintiff had hidden assets and caused liens to be placed on the marital residence.
Additionally, it is well settled that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court (see, Feldman v Feldman, 194 A.D.2d 207, 217-218; Loeb v Loeb, 186 A.D.2d 174). In fixing the amount of such an award, a court must take into account the financial circumstances of both parties, including their reasonable needs and means (see, Feldman v Feldman, supra). Further, an award of maintenance is not determined by actual earnings but by earning capacity (see, Liadis v Liadis, 207 A.D.2d 331). Here, the evidence established that the wife had not worked outside the home during much of the marriage and had obtained employment as a substitute teacher. Although the husband claimed to be unemployed, the court did not credit his testimony and concluded that he had hidden income and had a greater earning capacity than the wife. Accordingly, the court properly awarded maintenance to the wife for a period of three years.
Moreover, since it is well settled that a proper award of child support is not necessarily based upon a parent's actual income but may be based upon his earning potential (see, Liadis v Liadis, supra; Matter of Davis v Davis, 197 A.D.2d 622), the trial court's child support award was not unreasonable.
The court did not err in awarding counsel fees to the defendant on the basis of her attorney's affirmation, since the parties agreed to such a procedure (cf., Silverman v Silverman, 193 A.D.2d 595).
The plaintiffs remaining contentions are without merit. Sullivan, J.P., Copertino, Pizzuto and Krausman, JJ., concur.