| Beroza v Hendler |
| 2010 NY Slip Op 01751 [71 AD3d 615] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Gregory A. Beroza, Appellant, v Michele A. Hendler,Respondent. |
—[*1] Gassman, Baiamonte, Betts & Tannenbaum, P.C., Garden City, N.Y. (Stephen Gassman ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Nassau County (Warshawsky, J.),entered August 19, 2008, which, after a nonjury trial, inter alia, directed him to pay monthlychild support in the amount of $4,833.33, awarded him only one half of the defendant's one-halfinterest in the marital residence which she jointly owned with her mother, and only one half ofthe sum of $440,000, which the defendant transferred to the custodial accounts of the parties'children without his permission, awarded the defendant 25% of the appreciated value of his twobusinesses, declined to award him a percentage of the defendant's increased earnings, anddeclined to award him a 50% credit for unaccounted-for funds in the accounts held by thedefendant jointly with her mother at Chase Bank, deposited from October 14, 1997, to October12, 2001.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the fifth decretal paragraph thereof, and (2) by adding to the fifteenthdecretal paragraph thereof, after the words "Memorandum Decision After Trial," the phrase,"except that (i) the net value of the marital home which is available for equitable distribution is$549,876, and the husband is credited with the sum of $274,938, and (ii) the net value availablefor equitable distribution with respect to the children's custodial accounts is $605,848, and thehusband is credited with the sum of $302,924"; as so modified, the judgment is affirmed insofaras appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings in accordance herewith; and it is further,
Ordered that pending a new determination of the issue of child support, the plaintiff shallcontinue to pay monthly child support in the sum of $4,833.33, as set forth in the fifth decretalparagraph of the judgment.
At the time of the parties' marriage on April 21, 1990, the plaintiff was a licensedveterinarian who specialized in the treatment of horses, and the defendant was a licensedanesthesiologist at the Long Island Jewish Medical Center. Throughout the marriage, thedefendant [*2]worked full-time and the plaintiff operated hisprivate veterinary practice and a related business which boarded horses and held polo matches ona five-acre property in Huntington Station. The plaintiff purchased this property before themarriage. At the beginning of their marriage, the parties agreed that they would save thedefendant's income for a down payment on a home, and rely on the plaintiff's income to pay theirexpenses through one or both of his businesses.
In 1993 the defendant and her mother purchased a home in Laurel Hollow in which theparties lived for the duration of the marriage. The defendant and her mother held title as jointtenants with the right of survivorship, for the ostensible purpose of shielding the home from thehusband's potential creditors. The defendant and her mother assumed a $300,000 mortgage topurchase the home, which the defendant paid throughout the marriage, and satisfied during thependency of this action with a final payment of $30,248.
At the time the plaintiff commenced this action for divorce on October 12, 2001, the partieshad a son who was approximately 4½ years old, and twins who were approximately 18months old. After the parties resolved the grounds for divorce and the issues of custody andvisitation, the remaining issues were tried to the court during an 11-day trial, which commencedon February 5, 2007.
The parties were divorced by judgment dated August 13, 2008, which, inter alia, directed theplaintiff to pay monthly child support in the amount of $4,833.33; awarded the plaintiff one halfof the defendant's one-half interest in the marital residence after crediting the defendant withcertain sums and one half of $440,000, which the defendant transferred to the children's custodialaccounts without the plaintiff's permission, awarded the defendant 25% of the appreciated valueof the plaintiff's veterinary practice and the related business, declined to award the plaintiff apercentage of the defendant's increased earnings, and declined to award the plaintiff a 50% creditfor unaccounted-for funds in the joint accounts the defendant held with her mother at ChaseBank, deposited from October 14, 1997, to October 12, 2001.
For purposes of its child support award, the Supreme Court imputed income to the plaintiffin the sum of $259,100. The plaintiff challenges the imputation. His challenge is without merit.In determining a party's child support obligation, "a court need not rely upon the party's. . . account of his or her finances, but may impute income based upon the party'spast income or demonstrated earning potential" (DeVries v DeVries, 35 AD3d 794, 795 [2006] [internal quotationmarks omitted]; see Fruchter vFruchter, 29 AD3d 942 [2006]). The Supreme Court properly imputed an annualincome to the plaintiff based, inter alia, on undisputed evidence that his businesses paid forvirtually all of his personal expenses, so that his actual earnings greatly exceeded the amount ofincome which he reported on his tax returns (see Spreitzer v Spreitzer, 40 AD3d 840, 842 [2007]; Fruchter v Fruchter, 29 AD3d 942[2006]; Nebons v Nebons, 26AD3d 478 [2006]; Ivani v Ivani, 303 AD2d 639 [2003]).
However, in determining the amount of child support, the Supreme Court failed to set forththe parties' pro rata shares of child support, and to adequately explain the application of the"precisely articulated, three-step method for determining child support" pursuant to the ChildSupport Standards Act (Domestic Relations Law § 240 [1-b]; Matter of Cassano vCassano, 85 NY2d 649, 652; seeMcLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]). Accordingly, we remit thematter to the Supreme Court, Nassau County, for a recalculation of the plaintiff's child supportobligation (see McLoughlin v McLoughlin, 63 AD3d at 1019).
The Supreme Court properly determined that the plaintiff was entitled to one half of thedefendant's one-half interest in the marital residence, which was marital property and subject toequitable distribution (see Domestic Relations Law § 236 [B] [1] [c]; cf. Angotv Angot, 273 AD2d 423, 424 [2000]). However, the Supreme Court erred in deducting theamount of the outstanding mortgage from the stipulated gross value of the home to determine theavailable amount for equitable distribution since the mortgage was already satisfied at the timeof distribution, and the Supreme Court additionally credited the defendant for one half theamount of the $30,248 payment.
The Supreme Court also erred in determining the amount of marital funds which was [*3]subject to equitable distribution with respect to transfers thedefendant made from her personal bank account into the children's custodial accounts withoutthe plaintiff's permission. The evidence conclusively established that the defendant transferredthe sum of $605,848 in marital funds.
The plaintiff's remaining contentions are without merit. Dillon, J.P., Florio, Miller andChambers, JJ., concur.