| McLoughlin v McLoughlin |
| 2010 NY Slip Op 04967 [74 AD3d 911] |
| June 8, 2010 |
| Appellate Division, Second Department |
| James McLoughlin, Appellant, v Debra McLoughlin,Respondent. |
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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, Westchester County (Walker, J.),entered March 27, 2009, which, upon a decision of the same court (Montagnino, R.), datedFebruary 10, 2006, made after a nonjury trial, inter alia, awarded the defendant 70% of theproceeds of the sale of the marital residence and directed that, in lieu of periodic payments, theplaintiff's child support and spousal maintenance obligations and arrears therefor be paid fromthe proceeds of the sale of the former marital residence.
Ordered that the judgment is modified, on the law and the facts, by deleting (1) the seconddecretal paragraph thereof directing that, in lieu of periodic payments, the plaintiff's childsupport obligations to the defendant "through emancipation of the youngest child" be paid fromthe proceeds of the sale of the former marital residence, (2) the third decretal paragraph thereofawarding the defendant, in lieu of periodic payments, spousal maintenance in a lump sumdistribution to be paid from the proceeds of the sale of the former marital residence, and (3)those portions of the fifth and sixth decretal paragraphs thereof as directed the distribution to theplaintiff of 30% of the proceeds of the sale of the former marital residence and the distribution tothe defendant of 70% of the proceeds of the sale of the former marital residence; as so modified,the judgment is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Westchester County, for a hearing on the issues ofequitable distribution, the plaintiff's maintenance obligation, and the parties' respective childsupport obligations, and thereafter a new determination of those issues as well as the amountowed to the defendant for retroactive child support and, if applicable, maintenance, less anyamounts already paid by the plaintiff pursuant to the pendente lite order dated November 25,2002, and for the entry of an amended judgment thereafter.
The Supreme Court awarded the proceeds of the sale of the former marital residence in theratio of 70% to the defendant and 30% to the plaintiff. This distribution subsumedundifferentiated lump sum payments to the defendant for maintenance and child support, andarrears therefor.[*2]
"In determining a party's child support obligation, 'acourt need not rely upon the party's . . . account of his or her finances, but mayimpute income based upon the party's past income or demonstrated earning potential' " (Beroza v Hendler, 71 AD3d 615,617 [2010], quoting DeVries vDeVries, 35 AD3d 794, 795 [2006]). "Such a determination must be grounded in lawand fact" (DeSouza-Brown vBrown, 71 AD3d 946, 947 [2010]; see Mongelli v Mongelli, 68 AD3d 1070, 1071 [2009]; Petek vPetek, 239 AD2d 327, 328 [1997]).
Here, the Supreme Court imputed a yearly income of $100,000 to the plaintiff based uponhis prior earnings as a photographer and from the sale of real estate. However, the SupremeCourt did not make findings of fact regarding the impact of the plaintiff's stroke, suffered duringthe pendency of the action, upon his ability to earn income in the future, other than toacknowledge that this "may well have a considerable negative effect on his ability to earn moneyin the future."
In addition, the Supreme Court did not explain why it did not impute any income to thedefendant in making its child support determination. On her August 1, 2002, net worthstatement, the defendant reported her health as "good" and her occupation as "part time travelagent, homemaker." She has a high school education. The defendant reported income in her networth statement of $2,536 per year from her employment as a part-time travel agent. As theSupreme Court noted in the November 25, 2002, pendente lite order, the parties' children werebeyond the age of requiring full-time care, and the financial circumstances of the partiesnecessitated that the defendant seek employment. In that order, the Supreme Court imputed anincome of $30,000 a year to the defendant in determining the parties' pendente lite child supportobligations. The Special Referee did not indicate why he departed from this finding and, instead,imputed no annual income to the defendant in calculating the parties' respective child supportobligations. We also note that in 2004, the defendant represented to the Supreme Court that shehad earned $10,000 the previous year working part-time as a travel agent and as a receptionistfor an exercise studio. Since the Supreme Court did not impute any income to the defendant, itdid not determine the parties' pro rata shares of their joint child support obligation. It also cannotbe determined from the record what portion of the defendant's distributive share of the proceedsof the sale of the former marital residence was intended to constitute the plaintiff's child supportobligation.
"The amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its unique facts" (Grasso v Grasso, 47 AD3d 762,764 [2008]; see Brooks v Brooks,55 AD3d 520, 521 [2008]). Domestic Relations Law § 236 (B) (6) (a) sets forthcertain factors that a court should consider in awarding maintenance, including the distributionof marital property, the duration of the marriage, the age and health of the parties, the presentand future earning capacity of the parties, the ability of the party seeking maintenance to becomeself supporting, the reduced or lost lifetime earning capacity of the party seeking maintenance,the contributions and services of the party seeking maintenance as a spouse, parent, wage earnerand homemaker, and to the career or career potential of the other party. "[T]he statute makesclear that they are in aid of the primary maintenance issue of what is required to meet thereasonable needs of a party to the matrimonial action . . . as justice requires, havingregard for the circumstances of the case and of the respective parties . . . The statutefurther directs that a determination of reasonable needs requires a comparison of the respectivefinancial resources of the parties" (Brennan v Brennan, 103 AD2d 48, 50 [1984] [citationand internal quotation marks omitted]).
It is not apparent from the record whether the Supreme Court's award of maintenance to thedefendant was durational or nondurational, or what portion of the distribution constituted a lumpsum maintenance award. Although the Supreme Court found that the defendant had made"considerable" contributions as a wife, as a homemaker, and to the husband's photographybusiness, "to the best of her abilities," it failed to make findings regarding the defendant'sreasonable needs or her personal financial resources.
The distribution of marital property is generally left to the sound discretion of the trial court(see Domestic Relations Law § 236 [B] [5] [e]; Michaelessi v Michaelessi, 59 AD3d688, 689 [2009]). Pursuant to Domestic Relations Law § 236 (B) (5) (c), a court isrequired to consider the circumstances of the case and of the respective parties and to equitablydistribute the marital property. Furthermore, [*3]DomesticRelations Law § 236 (B) (5) (d) sets forth certain factors which the court "shall consider."When both spouses equally contribute to a marriage of long duration, the division of maritalproperty should be as equal as possible (see Adjmi v Adjmi, 8 AD3d 411 [2004]). However, there is norequirement that the distribution of each item of marital property be made on an equal basis (see Griggs v Griggs, 44 AD3d710, 713 [2007]; Chalif v Chalif, 298 AD2d 348, 349 [2002]). Thus, "after a carefulbalancing of all these factors, the court is required to distribute the marital property, notnecessarily equally or by reference to a predetermined formula, but equitably in view of thecircumstances of the case and of the relative positions of the parties" (Schanback vSchanback, 130 AD2d 332, 342 [1987]; see Domestic Relations Law § 236[B] [5] [c]).
Here, the Supreme Court identified various "complicat[ing]" factors in determining equitabledistribution, including its inability to determine from the record the amount of the child supportand maintenance arrears and the amount of unreimbursed medical expenses owed to thedefendant, and the absence of any valuation of the plaintiff's business or a capitalization of theincome stream from the residual payments he continued to receive from his photography work. Itwas the defendant's burden to establish the amount of arrears she claimed the plaintiff owed her(see Miller v Miller, 18 AD3d629, 630 [2005]). Although the Supreme Court acknowledged that the plaintiff's use ofmarital funds to meet his pendente lite support obligations was necessitated by the fact that hisincome alone was insufficient, it did not make any determination of the amount of marital fundsexpended by the plaintiff to meet his family's needs during the pendency of the action. Inaddition, the Supreme Court included undifferentiated lump sum distributions to the defendantrepresenting the plaintiff's maintenance and child support obligations in the distributive award,further complicating review of the propriety of the unequal distribution of the proceeds of thesale of the former marital residence, which was the parties' sole remaining marital asset at thetime of the trial.
Here, the facts were not sufficiently developed at trial to enable a reasoned determination ofthe issues of child support, maintenance, or equitable distribution. Accordingly, the matter mustbe remitted to the Supreme Court, Westchester County, for a hearing and a new determination ofthese issues (see O'Halloran vO'Halloran, 58 AD3d 704, 705 [2009]). We note that the defendant was entitled to anaward of child support and, if applicable, maintenance, retroactive to the date when she made anapplication for such support (see Koeth v Koeth, 309 AD2d 786, 787 [2003]).Accordingly, upon remittitur, the Supreme Court must calculate the amount of retroactive childsupport and, if applicable, maintenance, less any amounts already paid by the plaintiff pursuantto the pendente lite order (id. at 787).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Florio, Angiolillo andLott, JJ., concur.