| Mongelli v Mongelli |
| 2009 NY Slip Op 09627 [68 AD3d 1070] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Michael Mongelli, Appellant, v Susan Mongelli,Respondent. |
—[*1] Eric Dubinsky, Westbury, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Nassau County (Grob, Ct. Atty. Ref.),entered November 24, 2008, as, upon a decision of the same court dated July 31, 2008, madeafter a nonjury trial, awarded the defendant 50% of the appreciation of the marital residencefrom the date of the marriage, awarded him a separate property credit in the sum of only $48,000for the marital residence, imputed income to him in the sum of $100,000, directed him to paychild support in the sum of $1,924 per month for the parties' two minor children until theemancipation of the older of those children and, upon emancipation of the older minor child, topay child support in the sum of $1,308 per month until the emancipation of the younger of thosechildren, and awarded the defendant an attorney's fee in the sum of $15,000.
Ordered that the judgment is modified, on the law and the facts, by deleting from thefifteenth decretal paragraph thereof the sums of "$1,924.00," and "$1,308.00," and substitutingtherefor the sums of "$1,356.77," and "$922.60" respectively; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements.
The Supreme Court erred in determining the plaintiff's child support obligation. While acourt may depart from a party's reported income and impute income based on the party's pastincome or demonstrated earning potential (see Viscardi v Viscardi, 303 AD2d 401[2003]), such a determination must be grounded in law and fact (see Petek v Petek, 239AD2d 327, 328 [1997]). Here, the court failed to properly consider that the plaintiff'sopportunities to earn overtime compensation at his job had lessened in recent years, and that thehome improvement jobs that he performed on the side were for family and friends, with noshowing that he profited therefrom. Thus, the plaintiff's child support obligation, as determinedby the Supreme Court based upon income imputed to the plaintiff, must be modified.
We recalculate the plaintiff's child support obligation based on his total annual income of$70,254, as reflected on his 2007 federal tax return. Less FICA, his annual income for that yearwas $64,879.57. Since it is undisputed that the defendant's relevant annual income was[*2]$32,322 after the FICA deduction, the parties' combined parentalincome was $97,201.57. The plaintiff's pro rata share was 67% (see Domestic RelationsLaw § 240 [1-b] [f]).
As there were two unemancipated children, the applicable statutory percentage was 25%(see Domestic Relations Law § 240 [1-b] [b] [3] [ii]). The Supreme Court appliedthe statutory percentage to the total parental income in excess of $80,000 (see DomesticRelations Law § 240 [1-b] [c] [3]), finding that such a step was warranted for a number ofreasons, which it set forth in its decision. Among other things, the court noted that doing so wasconsistent with the children's pre-separation standard of living. The court thus complied withMatter of Cassano v Cassano (85 NY2d 649 [1995]) (see Kennedy v Kennedy,62 AD3d 755, 756-757 [2009]). We agree with the court's assessment, and similarly applythe statutory percentage to the combined parental income in excess of $80,000.
Applying the statutory percentage of 25% to the entire $97,201.57 in combined parentalincome, results in a basic child support obligation of $24,300.50 (see Domestic RelationsLaw § 240 [1-b] [b] [3] [ii]; [f]). Therefore, the plaintiff's child support obligation is 67%of that amount, or $1,356.77 monthly. Upon the emancipation of the older of the parties' twounemancipated children, the plaintiff's support obligation will be payable at a statutory rate of17%, and his support obligation will become $922.60 monthly.
The court properly determined that the defendant is entitled to an equitable share of theappreciation in the value of the marital residence over the course of the marriage,notwithstanding that the residence was the separate property of the plaintiff until 1999, when theproperty was transferred into the names of the plaintiff and the defendant as tenants by theentirety. The increase in the value of separate property remains separate property "except to theextent that such appreciation is due in part to the contributions or efforts of the other spouse"(Domestic Relations Law § 236 [B] [1] [d] [3]; see Price v Price, 69 NY2d 8[1986]), at which point the increase in value becomes marital property, in accordance with therule that the definition of marital property is to be broadly construed, given the principle that amarriage is an economic partnership (see Mesholam v Mesholam, 11 NY3d 24, 28[2008]; Price v Price, 69 NY2d 8, 14-15 [1986]). The record establishes that theappreciation in the value of the marital residence was attributable to the joint efforts of theparties (see Kilkenny v Kilkenny, 54 AD3d 816, 818-819 [2008]; Michelini vMichelini, 47 AD3d 902, 903 [2008]; Lagnena v Lagnena, 215 AD2d 445, 446[1995]). Thus, the defendant is entitled to share equitably in that increased value. In addition, thecourt's award of a separate property credit to the plaintiff in the sum of only $48,000 for thevalue of the marital residence at the time the parties were married was proper.
The award of reasonable counsel fees is a matter within the sound discretion of the trial court(see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881-882 [1987]). The issue of counselfees is controlled by the equities and circumstances of each case, and the trial court mustconsider the parties' respective financial circumstances in determining whether an award isappropriate (see Kearns v Kearns, 270 AD2d 392, 393 [2000]). Here, considering all ofthe factors, the court found that the plaintiff was in a better financial position to pay for a portionof the defendant's legal expenses and the reasonable amount of fees for the litigation. The trialcourt did not improvidently exercise its discretion in its award of counsel fees.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Florio, Miller and Hall,JJ., concur.