| Heiny v Heiny |
| 2010 NY Slip Op 05732 [74 AD3d 1284] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Cathleen Heiny, Appellant, v Jay Heiny,Respondent. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Orange County (Giacomo, J.), enteredAugust 4, 2008, as, after a nonjury trial on submitted facts, and upon an order of the same courtdated November 3, 2006 (Horowitz, J.), inter alia, granting that branch of the motion of thedefendant which was to reduce his maintenance obligation to the extent of directing him to paymaintenance in the sum of only $800 per month from November 2006 until December 2009, andupon an order of the same court (Giacomo, J.), dated June 3, 2008, among other things, statingthat the defendant owed her arrears in the sum of $4,611.40 for the period from September 24,2004, to May 16, 2007, directed him to pay child support in the sum of only $1,642 per monthfor the parties' unemancipated child, and maintenance in the sum of only $800 per monthcommencing on November 3, 2006, until December 3, 2009, and adjudged that the defendanthad paid to her the arrears stated to be owed by him in the order dated June 3, 2008.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof directing the defendant to pay child support inthe sum of $1,642 per month for the parties' unemancipated child, and substituting therefor aprovision directing him to pay child support in the sum of $1,746 per month for the parties'unemancipated child, (2) by deleting the provision thereof directing the defendant to paymaintenance in the sum of $800 per month from November 3, 2006, until December 3, 2009, andsubstituting therefor a provision directing him to pay maintenance in the sum of $1,800 permonth from November 3, 2006, until December 31, 2009, and (3), by deleting the provisionthereof adjudging that the defendant had paid the plaintiff the arrears stated to be owed by him inthe order dated June 3, 2008, for the period from September 24, 2004, to May 16, 2007, andsubstituting therefor a provision directing the defendant to pay arrears in the sum of $25,713.15owing for the period from September 24, 2004, to October 31, 2006; as so modified, thejudgment is affirmed insofar as appealed from, with costs to the plaintiff, the orders datedNovember 3, 2006, and June 3, 2008, are modified accordingly, and the matter is remitted to theSupreme Court, Orange County, for further proceedings consistent herewith, and the entrythereafter of an appropriate amended judgment.
The parties were married in 1982 and have three children, none of whom was emancipated[*2]at the time this action was commenced in September 2004.
Following a nonjury trial on submitted facts, the Supreme Court issued a decision dated May9, 2006, in which it calculated child support using the sum of $120,000 as the defendant's annualsalary. In calculating child support, the court declined to include the defendant's bonus in thesum of $31,035 (which the court referred to as the sum of $30,000) because of its "tentativenature and the lack of assurance that the Defendant will receive that amount each year." TheSupreme Court did not impute any income to the plaintiff, who, at the time, was not employedoutside the home, having left the work force in 1986 to become a stay-at-home mother andhomemaker. Upon applying the statutory percentage to the combined parental income in excessof $80,000, the Supreme Court fixed the defendant's child support obligation at the sum of$2,350 per month for the two then-unemancipated children until November 1, 2006, at whichtime the second child would become emancipated and, thereafter, at the sum of $1,642 per monthuntil the youngest child reached emancipation. No provision was made for the oldest child, whohad become emancipated in January 2005.
In the same decision, the Supreme Court also fixed the defendant's maintenance obligation at$1,800 per month through December 2014, and directed him to pay the children's medicalinsurance premiums, 100% of the children's unreimbursed medical expenses, and the high schooland college tuition of the youngest child.
The defendant thereafter moved, inter alia, to reduce his maintenance obligation. In an orderdated November 3, 2006, the Supreme Court, among other things, granted that branch of themotion to the extent of directing the defendant to pay maintenance in the sum of only $800 permonth from November 3, 2006, until December 3, 2009.
Thereafter, the plaintiff commenced an enforcement proceeding in the Family Court, seekingsupport and maintenance retroactive to the date of the commencement of the action. The matterwas transferred to the Supreme Court, and the parties were directed to tender submissions as towhether the defendant should pay retroactive support and maintenance and, if so, whether thedefendant owed arrears. In his affidavit, the defendant argued that he was entitled to a credit of$115,782.56 for the voluntary payments he made during the 26-month period from September2004 through October 2006. Annexed to the defendant's affidavit was a printout entitledPayments Made for Family Support for the Period September 2004-April 15, 2007. In anorder dated June 3, 2008, the Supreme Court granted the plaintiff's request for support andmaintenance retroactive to the commencement date of the action and, upon crediting thedefendant with the sum of $115,782.56, determined that the plaintiff was entitled to arrears in thesum of $4,611.40.
On this appeal from the ensuing judgment, the plaintiff argues that the Supreme Courtshould have included the defendant's bonus in calculating his child support obligation and that,in determining the maintenance award, the Supreme Court failed to consider, inter alia, thepre-divorce standard of living and her extended absence from the work force. The plaintiff alsochallenges the credit against arrears given to the defendant.
In reviewing a determination made after a nonjury trial, "the power of the Appellate Division. . . is as broad as that of the trial court . . . and . . . as toa bench trial it may render the judgment it finds warranted by the facts" (NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; seeMajauskas v Majauskas, 61 NY2d 481 [1984]; Boyle v Boyle, 44 AD3d 885[2007]).
The Supreme Court's determination to omit the defendant's bonus and to reduce the amountof maintenance is unsupported by the record and an improvident exercise of discretion. Wefurther find that the defendant was not entitled to a credit in the sum of $115,782.56. "Althoughcertain nonrecurring income may be excluded in calculating the ongoing child support obligationof a noncustodial parent" (Mirkin v Mirkin, 43 AD3d 1115, 1116 [2007]; seeDomestic Relations Law § 240 [1-b] [e]), in this case, the record shows that the defendant,who was vice president of sales and marketing for an educational publishing company, receivedbonuses in 2003, 2004, and 2005, none of which was in any sum less than $24,000.[*3]
Under the Child Support Standards Act, income consistsof, among other things, "gross (total) income as should have been or should be reported in themost recent federal income tax return" (Domestic Relations Law § 240 [1-b] [b] [5] [i]).Here, the annual bonus received by the defendant was consistently reported in earningsstatements for the respective years and on his income tax returns. Accordingly, given the recordin this case, the Supreme Court should have included the sum of $31,035 when calculating childsupport (see Mirkin v Mirkin, 43 AD3d at 1116; Matter of Scomello v Scomello,260 AD2d 483, 484 [1999]; Matter of Harris v Harris, 229 AD2d 439, 440 [1996]; cf.Skinner v Skinner, 271 AD2d 679, 680 [2000]).
"The overriding purpose of a maintenance award is to give the spouse economicindependence, and it should be awarded for a duration that would provide the recipient withenough time to become self-supporting" (Sirgant v Sirgant, 43 AD3d 1034, 1035 [2007];see Kilkenny v Kilkenny, 54 AD3d 816, 820 [2008]; DiBlasi v DiBlasi, 48AD3d 403, 404 [2008]). The mere fact, however, that a party has the ability to becomeself-supporting in no way obviates the need for the trial court to consider the pre-divorcestandard of living in determining the amount and duration of maintenance (see DomesticRelations Law § 236 [B]; Hartog v Hartog, 85 NY2d 36, 50-51 [1995];Krigsman v Krigsman, 288 AD2d 189, 190 [2001]).
In determining the amount and duration of maintenance, the Supreme Court did not addressthe plaintiff's pre-divorce standard of living, which included a 3,700-square-foot home, countryclub membership, a boat, and annual vacations. Moreover, the Supreme Court's assessment ofthe plaintiff's contributions to the defendant's career (see Domestic Relations Law§ 236 [B] [6] [a] [8]) ignored her orchestration of the household moves when thedefendant's promotions necessitated his relocation from Tennessee to Minnesota and later fromMinnesota to New York, that his work often involved traveling, leaving her as the sole caregiverfor the children, and that she entertained his business associates.
Based on this record, the amount of the defendant's maintenance obligation should beincreased from the sum of $800 per month to the sum of $1,800 per month. This is in keepingwith the reasonable needs of the plaintiff, who reports a monthly mortgage payment of $1,327.34and deferred student loan debt totaling $31,764 (see Zaretsky v Zaretsky, 66 AD3d 885,888 [2009]; Abrams v Abrams, 57 AD3d 809 [2008]; Fridman v Fridman, 301AD2d 567 [2003]).
Using the defendant's 2005 salary of $152,648 (consisting of a base salary of $121,613 and abonus of $31,035), as reported in his net worth statement sworn to on July 13, 2005, less FICAof $7,793, and maintenance of $21,600, the husband's income for calculating child supportamounts to $123,255 (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C],[H]). Applying the statutory rate of 29% for three children to the husband's available incomeresults in a support obligation of $2,979 per month, or $14,895 for the five-month period prior tothe oldest son becoming emancipated. Applying the statutory rate of 25% for two childrenresults in a support obligation of $2,568 per month, or $53,928 for the 21-month period until thesecond child became emancipated. Applying the statutory rate of 17% for one child beginningNovember 2006 results in a support obligation of $1,746 per month for the unemancipatedyoungest child. The combined child support and maintenance that the defendant was obligated topay prior to November 1, 2006, amounts to the sum of $115,623.
Contrary to the defendant's contention, he is entitled to a credit towards arrears in the sum ofonly $89,909.85, which includes voluntary payments for support paid directly to the plaintiff,tuition payments, medical insurance, and unreimbursed medical expenses (see Verdrager vVerdrager, 230 AD2d 786, 788-789 [1996]; Ferraro v Ferraro, 257 AD2d 598, 599[1999]), as well as voluntary payments toward the plaintiff's car payments and auto insuranceand for one half of the payments made toward both the home equity line of credit and thecarrying charges on the marital premises, which are limited to mortgage, oil utilities, electricutilities, and homeowners insurance (see Judge v Judge, 48 AD3d 424 [2008];Teague v Teague, 281 AD2d 473 [2001]; Grossman v Merke-Grossman, 248AD2d 670 [1998]; West v West, 151 AD2d 475 [1989]; Bara v Bara, 130 AD2d613 [1987]).
The defendant is not entitled to a credit for the remaining payments. These expenses eitherare not addressed in the decision dated May 9, 2006 (see Ruane v Ruane, 55 AD3d 586,588 [2008]), and, therefore, constitute voluntary payments made for the benefit of the children(see Matter of Hang Kwok [*4]v Xiao Yan Zhang, 35AD3d 467, 468 [2006]; Mayeri v Mayeri, 220 AD2d 647, 648 [1995]), or the paymentssatisfy the defendant's own legal obligations (see Krantz v Krantz, 175 AD2d 865, 866[1991]).
Thus, the total amount of arrears due and owing to the plaintiff is $25,713.15.
In light of the increase in the amounts of child support and maintenance provided for herein,the matter must be remitted to the Supreme Court, Orange County, for a determination of thearrears subsequent to October 31, 2006, and, thereafter, entry of an appropriate amendedjudgment (see Beece v Beece, 289 AD2d 352, 353 [2001]; Stempler v Stempler,143 AD2d 410, 413 [1988]). The Supreme Court should also determine whether the recalculatedmaintenance and child support arrears are to be paid in installments or in a lump sum(see Domestic Relations Law § 236 [B] [7] [a]; Miklos v Miklos, 39 AD3d826, 827-828 [2007]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Fisher, Florio andAustin, JJ., concur.