| McLoughlin v McLoughlin |
| 2009 NY Slip Op 05302 [63 AD3d 1017] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Carolann McLoughlin, Respondent, v ThomasMcLoughlin, Appellant. |
—[*1] Carolann McLoughlin, Monroe, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Orange County (McGuirk, J.), datedOctober 25, 2007, which, after a nonjury trial, inter alia, awarded the plaintiff maintenance in thesum of $800 per month for a period of four years, awarded the plaintiff child support in the sumof $1,470 per month, directed him to pay 65% of unreimbursed health care expenses for thechildren, directed him to pay 65% of verified childcare expenses, awarded the plaintiff a credit inthe sum of $25,000 for a separate property contribution toward the purchase of the maritalresidence, and awarded the plaintiff the right to claim the parties' children as dependents forState and Federal income tax purposes.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofawarding the plaintiff maintenance in the sum of $800 per month for a period of four years, andsubstituting therefor a provision awarding the plaintiff maintenance in the sum of $800 permonth for a period of four years or until the death of either party or the plaintiff's remarriage,whichever shall occur sooner, (2) by deleting the provision thereof awarding the plaintiff childsupport in the sum of $1,470 per month, (3) by deleting the provision thereof directing thedefendant to pay 65% of unreimbursed healthcare expenses for the children, (4) by deleting theprovision thereof directing the defendant to pay 65% of verified childcare expenses, (5) bydeleting the provision thereof awarding the plaintiff a credit in the sum of $25,000 for a separateproperty contribution toward the purchase of the marital residence, (6) by adding thereto aprovision awarding the defendant a credit for his payment of the parties' 2004 tax liability, and(7) by deleting the provision thereof awarding the plaintiff the right to claim the parties' childrenas dependents for state and federal income tax purposes, and substituting therefor a provisionawarding the defendant the right to claim the oldest child as a dependent for state and federalincome tax purposes and the plaintiff the right to claim the two younger children as dependentsfor state and federal income tax purposes; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements, and the matter is remitted to the Supreme Court,Orange County, for further proceedings in accordance herewith, a new determination of thedefendant's child support obligation and the percentage of his share of unreimbursed healthcareexpenses and verified childcare expenses, and the entry of an appropriate amended judgmentthereafter; and it is further,
Ordered that pending the new determination, the defendant shall pay child support to [*2]the plaintiff in the sum of $1,470 per month, with any overpaymentto be credited against future payments after the entry of the amended judgment.
"[T]he amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its own unique facts" (Wortman vWortman, 11 AD3d 604, 606 [2004]). In determining the appropriate amount and durationof maintenance, the court must consider, among other factors, the standard of living of theparties, the income and property of the parties, the duration of the marriage, the health of theparties, and the present and future earning capacity of the parties (see DomesticRelations Law § 236 [B] [6] [a]; Meccariello v Meccariello, 46 AD3d 640,641-642 [2007]; Griggs v Griggs, 44 AD3d 710, 711-712 [2007]). Although we agreethat the court providently exercised its discretion in determining the amount and duration ofmaintenance to be awarded to the plaintiff, the court should have included a provision that theaward of maintenance in the sum of $800 for a period of four years was for that duration or untilthe death of either party or the plaintiff's remarriage, whichever shall occur sooner (seeDomestic Relations Law § 236 [B] [1] [a]; Haines v Haines, 44 AD3d 901,903 [2007]; Gold v Gold, 276 AD2d 587, 590 [2000]).
Similarly, in determining the amount of child support, the Supreme Court failed to set forththe manner in which the incomes of the parties and their pro rata shares of child support werecalculated, and to adequately explain the application of the "precisely articulated, three-stepmethod for determining child support" pursuant to the Child Support Standards Act (hereinafterthe CSSA) (Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995]; see Sirgant vSirgant, 35 AD3d 437, 438 [2006]). Additionally, the Supreme Court failed to reduce thedefendant's income by the amount of maintenance paid to the plaintiff before determining hischild support obligation, and failed to direct a concomitant increase in the child supportobligation upon the termination of the maintenance obligation (see Domestic RelationsLaw § 240 [1-b] [b] [5] [vii] [C]; Navin v Navin, 22 AD3d 474, 475 [2005];Rohrs v Rohrs, 297 AD2d 317, 318 [2002]; Frei v Pearson, 244 AD2d 454,455-456 [1997]). The Supreme Court also failed to deduct from the defendant's income theplaintiff's share of the defendant's disability pension, which was part of her distributive award(see Morrissey v Morrissey, 259 AD2d 472, 473 [1999]).
Since the Supreme Court failed to properly calculate child support pursuant to the CSSA, weremit the matter to the Supreme Court, Orange County, for a recalculation of the defendant'schild support obligation (see Donovan v Szlepcsik, 52 AD3d 563, 564 [2008]; Irenev Irene, 41 AD3d 1179, 1181 [2007]). Moreover, since the defendant's share ofunreimbursed health care expenses and verified childcare expenses is based on the amount ofchild support that he is obligated to pay, we also remit the matter to the Supreme Court, OrangeCounty, for a recalculation of his share of those expenses.
The Supreme Court improperly awarded the plaintiff a credit in the sum of $25,000 for aseparate property contribution toward the purchase of the marital residence. Although theplaintiff testified that $25,000 of the down payment on the marital residence was paid with herseparate funds, she offered no other evidentiary support for her claim (see Romano vRomano, 40 AD3d 837, 838 [2007]; Murphy v Murphy, 4 AD3d 460, 461 [2004]).Since the plaintiff failed to meet her burden of establishing that the $25,000 was separateproperty, she was not entitled to a credit. The defendant also was entitled to a credit for one halfof the taxes he paid for the parties' joint 2004 tax liability (see Purpura v Purpura, 193AD2d 793, 796 [1993]; Shahidi v Shahidi, 129 AD2d 627, 630 [1987]).
A judgment or order must conform strictly to the court's decision (see Curry v Curry,14 AD3d 646, 647 [2005]; Pauk v Pauk, 232 AD2d 386, 390-391 [1996]). "Wherethere is an inconsistency between a judgment or order and the decision upon which it is based,the decision controls" (Curry v Curry, 14 AD3d at 647). Here, that portion of thejudgment which awarded the plaintiff the right to claim all the parties' children as dependents forstate and federal income tax purposes does not conform to the court's decision, which stated thatthe defendant would be awarded the right to claim the oldest child for tax purposes.Consequently, we modify that provision of the judgment accordingly.
The defendant's remaining contentions are without merit. Rivera, J.P., Dillon, Belen andHall, JJ., concur.