| Lueker v Lueker |
| 2010 NY Slip Op 02930 [72 AD3d 655] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Stephen R. Lueker, Appellant, v Donna DeWitt Lueker,Respondent. |
—[*1] Angela Scarlato, Brooklyn, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of an order and judgment (one paper) of the Supreme Court, Kings County(Deutsch, J.H.O.), dated May 20, 2008, which, upon an amended decision of the same courtdated January 22, 2008, made after a nonjury trial, inter alia, awarded the defendant the sum of$298,819.92, representing her 50% equitable share of the marital property, directed him to pay tothe defendant arrears in his pendente lite child support and maintenance obligations in the sum of$17,668.81, maintenance in the sum of $2,000 per month for a period of 18 months commencingfrom the date of the entry of the order and judgment, child support in the sum of $2,031 permonth, 78% of certain add-on expenses for the benefit of the parties' children, and his pro ratashare of the children's private school tuition, and to continue his life insurance policy for thebenefit of the children until the emancipation of each child, and denied his motion for downwardmodification of his pendente lite child support and maintenance obligations.
Ordered that the order and judgment is modified, on the law, on the facts, and in the exerciseof discretion, (1) by deleting the provision thereof awarding the defendant the sum of$298,819.92, representing her 50% equitable share of the marital property, and substitutingtherefor a provision awarding the defendant the sum of $282,166.40, representing her 50%equitable share of the marital property; (2) by deleting the provision thereof directing theplaintiff to pay child support in the sum of $2,031 per month, and substituting therefor aprovision directing the defendant to pay child support in the sum of $1,849 per month; (3) bydeleting the provision thereof directing the plaintiff to pay 78% and the defendant to pay 22% ofcertain add-on expenses, and substituting therefor a provision directing the plaintiff to pay 71%and the defendant to pay 29% of certain add-on expenses; (4) by adding to the fifteenth decretalparagraph thereof the word "reasonable" before the words "unreimbursed medical expense forthe children"; (5) by adding a provision thereto directing that the plaintiff is entitled to declareone of the parties' children as a dependent on his income tax returns, and directing the defendantto execute the appropriate Internal Revenue Service forms; (6) by deleting the provision thereofdirecting the plaintiff to pay to the defendant arrears in his pendente lite child support andmaintenance obligation in the sum of $17,668.81, and substituting therefor a provision directingthe plaintiff to pay arrears in his pendente lite child support and maintenance obligations in thesum of $9,014.43; as so modified, the order and judgment is affirmed [*2]insofar as appealed from, without costs or disbursements.
The contributions to the plaintiff's retirement plan made after commencement of thematrimonial action are separate property not subject to equitable distribution (see Pauk vPauk, 232 AD2d 386, 388 [1996]; Glasberg v Glasberg, 162 AD2d 586, 587 [1990]).However, the defendant was entitled to the equitable distribution of any passive interest earnedon the marital portion of the plaintiff's retirement plan (see Gagstetter v Gagstetter, 283AD2d 393, 396 [2001]; Glasberg v Glasberg, 162 AD2d at 587). Accordingly, theSupreme Court should have valued the plaintiff's retirement plan at $74,798.19 instead of$96,819.27.
Contrary to the plaintiff's contention, since he filed a separate tax return for 2005, his 2005tax obligations were his alone (see Harmon v Harmon, 173 AD2d 98, 108 [1992]).However, since the plaintiff's bank accounts were valued as of the date of the commencement ofthe matrimonial action, the defendant was improperly credited with a $15,000 estimated taxpayment made by the plaintiff after the commencement of the action. The $15,000 was includedin the marital property which was equitably distributed. Accordingly, the Supreme Courtimproperly credited the defendant the sum of $1,875.
Contrary to the Supreme Court's determination, since the matrimonial action wascommenced on September 22, 2005, 72.6%, and not 75%, of the New York State tax refundreceived in 2005 should have been deemed marital property. Therefore, the defendant wasentitled to a credit in the sum of $1,451.27, instead of the $1,499.25 calculated by the SupremeCourt. Similarly, 72.6% of the plaintiff's bonus received in 2006 for work performed in 2005constituted marital property. Therefore, the defendant was entitled to a credit in the sum of$33,880, instead of the $35,000 calculated by the Supreme Court. Further, the $5,200 rentsecurity deposit made for the marital residence constituted marital property that should havebeen divided equally between the parties and, therefore, the defendant's distributive award mustbe reduced by the sum of $2,600 (seeSinha v Sinha, 17 AD3d 131, 132 [2005]).
Accordingly, after valuing the plaintiff's retirement plan at $74,798.19, eliminating thedefendant's credit in the sum of $1,875 for the estimated tax payment, giving the defendantcredits of $1,451.27 for the New York State tax refund and $33,880 for the bonus, and reducingthe defendant's distributive award by the sum of $2,600, the defendant's 50% distributive shareof the marital property totals $282,166.40, and we modify the judgment accordingly.
With respect to the pendente lite award, contrary to the plaintiff's contention, the SupremeCourt was not required to deduct the maintenance award from his gross income before applyingthe formula set forth by the Child Support Standards Act (see Domestic Relations Law§ 240 [1-b] [b] [5] [vii] [C]), since a pendente lite award, rather than a permanent award,was at issue (see Krantz v Krantz, 175 AD2d 863, 864 [1991]; Lenigan vLenigan, 159 AD2d 108, 111 [1990]).
With respect to the final award of child support, the Supreme Court, using the parties' 2006income tax returns, found that the plaintiff had an income of $309,046; however, the plaintiff's2006 Federal income tax return shows that he had an income of $304,992. The Supreme Courtdeducted FICA and local taxes, and then deducted $24,000 for maintenance paid to thedefendant. The parties' 2006 income tax returns show that the plaintiff paid, and the defendantreceived, the sum of $29,863 in maintenance in 2006. Therefore, the Supreme Court should havededucted the sum of $29,863 from the plaintiff's parental income in calculating child support(see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]).
Furthermore, maintenance payments received and reported on a party's most recently filedincome tax return should be included as income for purposes of calculating child support (seeDomestic Relations Law § 240 [1-b] [b] [5] [i]; Ansour v Ansour, 61 AD3d 536, 536-537 [2009]; Matter of Krukenkamp v Krukenkamp,54 AD3d 345, 346 [2008]). Accordingly, the sum of $29,863 should have been added to thedefendant's parental income in calculating child support.
Rather than remit the matter to the Supreme Court, Kings County, we recalculate the [*3]plaintiff's child support obligation in the interest of judicialeconomy (see Matter of Krukenkamp v Krukenkamp, 54 AD3d at 346). Making theappropriate adjustments, and applying the statutory percentage of 25% to the capped parentalincome of $125,000, as did the Supreme Court, the plaintiff's pro rata share of the combinedparental income is 71%, and his child support obligation is $1,849 per month. We modify thejudgment accordingly, and further modify the judgment to direct that the plaintiff pay 71%, andthe defendant pay 29%, of certain add-on expenses for the benefit of the children.
The Supreme Court properly directed the plaintiff to continue his life insurance policy forthe benefit of the children until the emancipation of each child (see Matter of Moran v Grillo, 44AD3d 859, 860-861 [2007]; Corless v Corless, 18 AD3d 493, 494 [2005]; Weisbard vMissett, 289 AD2d 482, 483 [2001]; Fogarty v Fogarty, 284 AD2d 300, 301-302[2001]). Contrary to the plaintiff's contention, the Supreme Court was not required to direct thathis life insurance policy have a declining balance (see Fogarty v Fogarty, 284 AD2d at301-302).
Since both parties are wage earners who contribute toward the support of their two children,the plaintiff may claim one of the children as a dependent on his income tax returns (see Skladanek v Skladanek, 60 AD3d1035, 1037 [2009]; O'Halloran vO'Halloran, 58 AD3d 704, 706 [2009]; Popelaski v Popelaski, 22 AD3d 735, 738 [2005]; Junkins vJunkins, 238 AD2d 480, 482 [1997]).
"Modifications of pendente lite awards should be sparingly made and then only underexigent circumstances such as where a party is unable to meet his or her own needs, or theinterests of justice otherwise require relief" (Campanaro v Campanaro, 292 AD2d 330,331 [2002]; see Ruane v Ruane, 55AD3d 586, 587-588 [2008]; Levinev Levine, 19 AD3d 374, 376-377 [2005]). The plaintiff's testimony at trial revealed he"had the resources available to sufficiently provide for his family as established in the pendentelite award" (Krigsman v Krigsman, 288 AD2d 189, 191 [2001]; see Ruane vRuane, 55 AD3d at 588). Accordingly, the Supreme Court properly denied the plaintiff'smotion for downward modification of his pendente lite child support and maintenanceobligations.
In a parenting agreement, the parties stated their intention for their children to continue toattend private school. Therefore, the Supreme Court providently exercised its discretion indirecting the plaintiff to pay his pro rata share of the children's private school tuition (see Cohen v Cohen, 21 AD3d 341[2005]).
The Supreme Court mistakenly omitted the word "reasonable" to describe the unreimbursedhealth care expenses to be paid (see Domestic Relations Law § 240 [1-b] [c] [5][v]; Griggs v Griggs, 44 AD3d710, 713-714 [2007]; Grossman v Grossman, 224 AD2d 489, 491 [1996]).Accordingly, we modify the judgment to include that omitted language.
In calculating arrears for child support and maintenance pursuant to the pendente lite order,it was error for the Supreme Court to include the children's tutoring expenses, since the plaintiffwas not required to pay any tutoring expenses under that order (see Moss v Moss, 36 AD3d 674[2007]). Furthermore, the plaintiff demonstrated that he paid $834.50 for his daughter's tuition inJanuary 2006, and was not credited for that amount in the determination of arrears. The plaintiffwas also entitled to a partial credit for the rent payments he made for the marital residence fromNovember 2005 to January 2006 (see Grossman v Merke-Grossman, 248 AD2d 670[1998]; Southwick v Southwick, 214 AD2d 987, 988 [1995]; Bara v Bara, 130AD2d 613 [1987]). Accordingly, the plaintiff's arrears must be reduced to the sum of $9,014.43.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andRoman, JJ., concur.