| DeSouza-Brown v Brown |
| 2010 NY Slip Op 02507 [71 AD3d 946] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Sonia DeSouza-Brown, Respondent, v David Brown,Appellant. |
—[*1]
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, Nassau County (Falanga, J.), enteredJune 19, 2008, which, upon a decision of the same court (Friedenberg, J.H.O.), dated February20, 2008, made after a nonjury trial, inter alia, awarded the plaintiff a separate property credit of$162,417, awarded him only a 35% interest in the marital residence, directed that the partieseach have sole title to any pension or retirement interests in his or her possession, imputedannual income to him of $100,000, directed him to pay child support in the sum of $1,923 permonth for the parties' two minor children until the emancipation of the older child, and, interalia, awarded the plaintiff an attorney's fee in the sum of $20,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Notwithstanding the long duration of the parties' marriage, there is no requirement that thedistribution of each item of marital property be made on an equal basis (see Peritore v Peritore, 66 AD3d750, 752-753 [2009]; Griggs vGriggs, 44 AD3d 710, 713 [2007]). In this case, the Supreme Court providentlyexercised its discretion in fashioning an equitable distribution award of a 65% interest in themarital residence to the plaintiff and a 35% interest thereof to the defendant (see generally Loria v Loria, 46 AD3d768, 769-770 [2007]). The Supreme Court considered the applicable statutory factors informulating its equitable distribution award (see Domestic Relations Law § 236[B] [5] [d]; Holterman vHolterman, 3 NY3d 1, 7-8 [2004]). Moreover, the Supreme Court correctly awarded theplaintiff a separate property credit of $162,417, and correctly determined that the parties shallretain their respective pension and retirement accounts. The Supreme Court providentlyexercised its discretion in evaluating the credibility of the witnesses in making its equitabledistribution determination after a nonjury trial, and the Supreme Court's assessment of thecredibility of the witnesses is entitled to great weight on appeal (see Schwartz v Schwartz, 67 AD3d989, 990 [2009]). We decline to disturb the Supreme Court's determination on appeal.
The Supreme Court is not required to rely upon a party's account of his or her finances (see Khaimova v Mosheyev, 57 AD3d737 [2008]; Ivani v Ivani, 303 AD2d 639 [2003]). In determining an award of childsupport, the Supreme Court "may depart from a party's reported income and impute incomebased on the party's past income or demonstrated earning potential" (Mongelli v Mongelli, 68 AD3d1070, [*2]1071 [2009]). Such a determination must begrounded in law and fact (id.). Here, the defendant's expenses listed in his "Statement ofNet Worth" far exceeded his income as reported in his tax returns. He lived in a two-bedroomapartment which rented for $2,340 per month in a luxury apartment building. Under thecircumstances presented here, the Supreme Court correctly imputed annual income of $100,000to the defendant (see Khaimova v Mosheyev, 57 AD3d at 737-738; Powers v Wilson, 56 AD3d 639,641 [2008]; Ivani v Ivani, 303 AD2d at 639-640). Moreover, the defendant, who hadbeen employed for 12 years by a major bank when his job was eliminated, failed to satisfy hisburden of establishing that he diligently sought to obtain new employment commensurate withhis qualifications and experience (seePaul v Paul, 67 AD3d 757, 758 [2009]).
The Supreme Court properly awarded the plaintiff an attorney's fee, based on the relativefinancial circumstances of the parties and the relative merits of their positions at trial(see Domestic Relations Law § 237 [a], [d]; O'Shea v O'Shea, 93 NY2d187, 193-194 [1999]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881-882 [1987];Powers v Wilson, 56 AD3d at 641; Schek v Schek, 49 AD3d 625, 626 [2008]; Griggs v Griggs, 44 AD3d 710,714 [2007]).
The defendant's remaining contentions are without merit. Covello, J.P., Miller, Dickersonand Belen, JJ., concur.