| Brevilus v Brevilus |
| 2010 NY Slip Op 03396 [72 AD3d 999] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Veda Lamene Brevilus, Appellant, v Jean ManeusBrevilus, Respondent. |
—[*1] Lally Mahon & Rooney, LLP, Mineola, N.Y. (Grant M. Lally of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), datedApril 7, 2008, which, upon a decision of the same court dated March 29, 2005, made after anonjury trial, inter alia, imputed an annual income to the defendant in the sum of $50,000 for thepurpose of his child support obligation and, on that basis, directed the defendant to pay her childsupport in the sum of $1,112 per month, and, in effect, failed to award her equitable distributionof certain rental income.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by deleting the fourth decretal paragraph thereof imputing an annual income to the defendantin the sum of $50,000 for the purpose of his child support obligation and, on that basis, directinghim to pay the plaintiff child support in the sum of $1,112 per month, (2) by deleting the fifthdecretal paragraph thereof directing the defendant to pay 58% of all child care, unreimbursednonelective medical, psychiatric, and dental expenses for the children, and (3) by deleting somuch of the eighth decretal paragraph thereof as, in effect, failed to award the plaintiff equitabledistribution of certain rental income; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings in accordance herewith; and it is further,
Ordered that, pending the new determination as to the defendant's obligation to pay childsupport, and child care, unreimbursed nonelective medical, psychiatric, and dental expenses forthe children, the defendant shall continue to pay child support in the sum of $1,112 per monthand 58% of all child care, unreimbursed nonelective medical, psychiatric, and dental expensesfor the children.
The parties purchased the marital residence (hereinafter the home) in 1999 and thereafterrented portions of the home to residential tenants while occupying its main floor. In [*2]February 2002 the plaintiff (hereinafter the wife) commenced anaction for a divorce and ancillary relief. In a pendente lite order dated July 8, 2002, the SupremeCourt, among other things, awarded the defendant (hereinafter the husband) interim custody ofthe parties' children and exclusive occupancy of the home, and directed him to pay the wifemaintenance in the amount of $125 per week. Additionally, pursuant to that order, the husbandwas responsible for all the carrying charges on the home in light of his exclusive occupancy andhis receipt of rental income from the home. As subsequently amended, the July 2002 pendentelite order directed the wife to pay the husband $75 per week in child support but allowed her tocredit her child support obligation against any unpaid maintenance. No child support ormaintenance payments were made pursuant to the pendente lite order.
After a nonjury trial, in a decision dated March 29, 2005, the Supreme Court, among otherthings, awarded physical custody of the parties' children to the wife, directed the husband to paythe wife child support in the amount of $1,112 per month after imputing annual income to him inthe amount of $50,000, denied the wife's application for equitable distribution of fire insuranceproceeds received for damages to the home and of rental income from the home generated duringa 40-month period of time during which the husband had exclusive possession, and distributedthe Haitian real property owned by the parties in kind. We modify the judgment entered upon thedecision and remit the matter to the Supreme Court, Nassau County, for further proceedings.
The determination of the Supreme Court that certain fire insurance proceeds were not subjectto equitable distribution because they were used to repair and refurbish the home (seeJohnson v Johnson, 277 AD2d 923, 926 [2000]), rather than dissipated by the husband, issupported by the record. Additionally, contrary to the wife's contention, the Supreme Court hadjurisdiction to distribute Haitian real property owned by the parties (see Riechers vRiechers, 267 AD2d 445, 446 [1999]).
However, we agree with the wife that the Supreme Court erred in calculating the husband'schild support obligation based on an imputed annual income of $50,000 per year. Thatimputation was based upon findings that the husband's average annual reported income over theyears 2000-2003 was $37,264 and that, in addition, he received $2,000 per month (i.e. $24,000per year) in rental income. Those findings alone demonstrate that the husband's actual incomeexceeds $60,000 per year. Moreover, at one point during the trial, the husband testified that heactually received rental income in the amount of $2,200 per month and, in addition, earned "acouple thousand dollars" per year in unreported income from secondary employment.
In light of the evidence in the record that the husband's actual income exceeds $50,000 peryear, we remit the matter to the Supreme Court, Nassau County, for a new determination of theamount of income to be imputed to the husband and, thereafter, a recalculation of his childsupport obligation (see Elimelech vElimelech, 58 AD3d 672, 674 [2009]). Moreover, since the husband's share of all childcare, unreimbursed, nonelective medical, psychiatric, and dental expenses for the children, asprovided for in the judgment appealed from, is based on his pro rata share of the total childsupport obligation, we also remit the matter to the Supreme Court, Nassau County, for arecalculation of his share of those expenses (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]). Inrecalculating the husband's child support obligation under the Child Support Standards Act(Domestic Relations Law § 240), we note that FICA taxes should be deducted only fromincome upon which FICA taxes are "actually paid" prior to applying the provisions of DomesticRelations Law § 240 (1-b) (c) (Domestic Relations Law § 240 [1-b] [b] [5] [vii][H]).
Moreover, we remit the matter to the Supreme Court, Nassau County, for a newdetermination as to whether the wife is entitled to equitable distribution of the rental incomegenerated by the home during the 40-month period when the husband had exclusive occupancypursuant to the July 2002 pendente lite order. Real property conveyed to a husband and wifecreates a tenancy by the entirety, and each cotenant to a tenancy by the entirety is entitled to onehalf of the rents and profits generated by the jointly owned real estate (see Stepakoff vStepakoff, 96 AD2d 1097, [*3]1097-1098 [1983]; seealso Markov v Markov, 304 AD2d 879, 880 [2003]; Palazzo v Palazzo, 121 AD2d261, 265 [1986]).
Here, the Supreme Court based its determination that the wife was not entitled to equitabledistribution of the rental income generated during the relevant time period upon its finding thatthe husband had custody of the parties' children and that the wife failed to pay child supportduring that time, and its finding that "the expenses in maintaining the house are not limited to themortgage and taxes, as [the wife] well knows." However, the pendente lite order, as amended,entitled the wife to offset her monthly child support obligation of $75 against the husband'smonthly maintenance obligation of $125. Since the husband failed to make any maintenancepayments pursuant to that order, the wife's failure to make child support payments did not entitlethe husband to a credit against any rental income from the home to which the wife was otherwiseentitled.
Moreover, although the Supreme Court appears to have concluded that the husband wasentitled to a credit against the wife's share of the rental income based upon his payment ofcertain carrying charges, it failed to make any findings as to what portions of those carryingcharges, if any, were paid by the tenants at the home, set forth any calculations to demonstratethat the amount of those carrying charges paid by the husband completely offset the wife'sentitlement to rental income, or determine how much of the carrying charges should have beenapplied to the living expenses of the husband and the children, which should not be chargeable tothe wife, as opposed to the amount attributable to the tenants.
The parties' remaining contentions are without merit. Skelos, J.P., Austin, Roman and Sgroi,JJ., concur.