| Bellinger v Bellinger |
| 2007 NY Slip Op 10018 [46 AD3d 1200] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Mark W. Bellinger, Appellant-Respondent, v Sheila J. Bellinger,Respondent-Appellant. |
—[*1] Joanne M. White, Latham, for respondent-appellant.
Mugglin, J. (1) Cross appeals from a judgment of the Supreme Court (Teresi, J.), enteredOctober 3, 2006 in Albany County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court, and (2) appeal from an order of said court,entered February 6, 2007 in Albany County, which partially granted defendant's motion for anaward of counsel fees.
In this matrimonial action, most of the marital issues were resolved by stipulation betweenthe parties. Several months after the stipulation was placed on the record, plaintiff made anapplication for a default judgment of divorce. In response, defendant cross-moved seeking,among other things, to set aside the stipulation. By decision and order dated November 15, 2005,Supreme Court (McNamara, J.) partially granted defendant's cross motion and set aside the childsupport provisions because the stipulation did not indicate whether the amount of child supportwas presumptively correct or whether it represented a deviation from the Child SupportStandards Act (see Domestic Relations Law § 240 [1-b]). Following trial, SupremeCourt (Teresi, J.) granted a judgment of divorce which, among other things, awarded childsupport in an amount in excess of that contained in the prior stipulation, ordered plaintiff to paydefendant $2,475 in previously owed car insurance and determined that defendant was entitled tosubmit an [*2]application for counsel fees. Both parties appealfrom the judgment of divorce and plaintiff also appeals from Supreme Court's order awardingdefendant counsel fees in the amount of $15,874.47.
First, with respect to the issue of child support, plaintiff argues that Supreme Court erred invacating the child support stipulation, improperly calculated his income in two respects,miscalculated his deductions in two respects and abused its discretion in applying the childsupport percentages to all of the parties' income in excess of $80,000. Our analysis begins byobserving that no appeal was taken from the order vacating that portion of the stipulation thatdealt with child support and so this issue is not properly before us (see Matter of Barrow v Kirksey, 15AD3d 801, 802 [2005], lv denied 5 NY3d 701 [2005]; Hendricks v Hendricks, 13 AD3d928, 931 [2004]). In any event, Supreme Court correctly determined that the stipulationfailed to comply with nonwaivable requirements of the CSSA (see Domestic RelationsLaw § 240 [1-b] [h]; Fessenden v Fessenden, 307 AD2d 444, 445 [2003]).
Next, with respect to the calculation of his income, plaintiff claims that Supreme Courtimproperly included before-tax health insurance deductions and a "one-time payment" from hisemployer in the amount of $15,496.56 as income. Supreme Court correctly found that thebefore-tax health insurance deductions in the sum of $1,895.05 were a fringe benefit provided aspart of plaintiff's compensation for employment and includable in the calculation of his incomefor child support purposes (see Domestic Relations Law § 240 [1-b] [b] [5] [iv][C]; see also Skinner v Skinner, 241 AD2d 544, 545 [1997]).
Likewise, we find no error in the inclusion of the sum of $15,496.56 in plaintiff's income.Contrary to his claim that this was a one-time nonrecurring payment, the record reveals that hereceived a similar cash payment in 2003. Moreover, the record reflects that his income hasconsistently increased for three consecutive years. Under these circumstances, even assuming theone-time nature of this payment, Supreme Court permissively exercised its broad discretion toimpute that sum as income to plaintiff (see Domestic Relations Law § 240 [1-b][b] [5] [iv]; see e.g. Matter of Mitchell v Mitchell, 264 AD2d 535, 538 [1999], lvdenied 94 NY2d 754 [1999]).
Next, plaintiff's claim that his income was overstated by reason of the miscalculation ofdeductions is addressed to maintenance paid and Social Security and FICA payments. Withrespect to maintenance, plaintiff correctly points out that his annual maintenance payment will be$9,804, but that Supreme Court gave him credit only for the amount actually paid in 2005($7,353). As the statute authorizes a deduction for "alimony or maintenance actually paid or to bepaid to a spouse that is a party to the instant action" (Domestic Relations Law § 240 [1-b][b] [5] [vii] [C]), we find no error in Supreme Court utilizing the figure actually paid. Withrespect to plaintiff's argument that he received improper credit for FICA contributions, we agreethat Supreme Court committed a minor error in only deducting $5,580 for Social Security andnot including $1,648.98 for Medicare. Before recalculating the child support obligation,however, we address and specifically reject plaintiff's contention that Supreme Court abused itsdiscretion by incorporating all of the parties' income in excess of $80,000. Although the court didnot adequately set forth its reasons for applying the statutory formula to the combined income inexcess of $80,000 (see e.g. Matter of Gluckman v Qua, 253 AD2d 267, 270 [1999], lvdenied 93 NY2d 814 [1999]), the record does reflect that the overall analysis conducted bySupreme Court was thorough and careful as it concerned the parties' financial circumstances,such that including the parties' income exceeding $80,000 in the computation of child supportdoes not constitute an [*3]abuse of discretion (see Smith v Smith, 1 AD3d 870,872 [2003]; Matter of Baker v Baker, 291 AD2d 751, 753 [2002]).
Insofar as the calculation is concerned, after plaintiff receives credit for the Medicare portionof his FICA deduction, his income for child support purposes is $97,549. When added todefendant's income of $21,298.39, the combined parental income is $118,847.39. As the partieshave two children, application of 25% to this income yields an annual child support obligation of$29,711.85 or $571.38 per week. Plaintiff is responsible for 82% of this total or $468.53.
Next, insofar as the car insurance issue is concerned, there is no merit to plaintiff's argumentthat he is not required to pay this because the stipulation wherein he agreed to pay this expensewas vacated. The only portion of the stipulation vacated concerned child support, and as plaintiffadmitted during trial that he had never paid the car insurance, Supreme Court did not err indirecting him to do so.
Finally, with respect to counsel fees, the doctrine of collateral estoppel does not bardefendant from recovering counsel fees. Neither order referenced by plaintiff makes anydetermination with respect to counsel fees, rendering this argument meritless. Moreover, asSupreme Court is vested with considerable discretion in considering counsel fee applications (see Webber v Webber, 30 AD3d723, 724 [2006]) and, in the exercise of that discretion, considers various factors, including "'the respective income of the parties, the nature and extent of the services rendered, thecomplexity of the issues involved and the result achieved' " (Matter of Yarinsky v Yarinsky, 36 AD3d 1135, 1140-1141 [2007],quoting Matter of Van Horn v Dahoda, 272 AD2d 791, 792 [2000]), we find no abuse ofSupreme Court's discretion in awarding counsel fees to defendant in the amount of $15,874.45.
Crew III, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by reducing plaintiff's weekly child supportobligation to $468.53, and, as so modified, affirmed. Ordered that the order is affirmed, withoutcosts.