| Costigan v Renner |
| 2010 NY Slip Op 06773 [76 AD3d 1039] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Daniel Costigan, Respondent-Appellant, v Elizabeth A.Renner, Appellant-Respondent. |
—[*1] Howard B. Felcher, New York, N.Y. (Andrew M. Ayers of counsel), forrespondent-appellant. Cheng & Fasanya, LLP, Rosedale, N.Y. (Ade Fasanya of counsel), attorney for thechildren.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Queens County (Fitzmaurice, J.), enteredMarch 6, 2009, as, upon a decision of the same court dated August 10, 2007, made after anonjury trial, awarded the plaintiff custody of the parties' two children, failed to award hermaintenance and pendente lite arrears of maintenance and child support, directed her to pay childsupport and a pro rata share of the children's private school tuition, directed that all propertysubject to equitable distribution be distributed in accordance with the parties' stipulation ofsettlement dated July 27, 2007, and failed to award her counsel fees and expert fees, and theplaintiff cross-appeals, as limited by his brief, from so much of the same judgment as awardedhim the sum of only $303 per week in child support, failed to award him counsel fees, and deniedhis request to reallocate expert fees and fees for the attorney for the children.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
The Supreme Court's determination to award custody of the two minor children to the fathershould not be disturbed. "There is overwhelming authority that a child living in a home wherethere has been abuse between the adults becomes a secondary victim and is likely to sufferpsychological injury. Moreover, that child learns a dangerous and morally depraved lesson thatabusive behavior is not only acceptable, but may even be rewarded" (Matter of Wissink vWissink, 301 AD2d 36, 40 [2002]). Here, the trial court, having the benefit of observing andlistening to the witnesses firsthand, credited the father's allegations of abuse by the mother andfound that the mother's denials thereof lacked veracity (see Matter of Moreno v Cruz, 24 AD3d 780 [2005]; see also Salvatore v Salvatore, 68AD3d 966 [2009]; Matter of Lobo v Muttee, 196 AD2d 585 [1993]). The acts ofdomestic violence committed by the mother against the father demonstrate that the mother isill-suited to provide the children with "moral and intellectual guidance" (Matter of DeJesus vTinoco, 267 AD2d 308, 308 [1999]; see Matter of Wissink v Wissink, 301 AD2d at40).[*2]
Contrary to the mother's contention, the Supreme Courtdid not err in declining to award her maintenance. Although the mother argues that the SupremeCourt's decision failed to discuss the parties' predivorce standard of living, under thecircumstances of this case, such consideration is of little determinative value, especially in lightof the fact that the parties only lived together for less than three years after their marriage in 1999(cf. Heiny v Heiny, 74 AD3d1284 [2010]). Moreover, considering the statutory factors set forth in Domestic RelationsLaw § 236 (B) (6) (a), and taking into account that the mother has the ability to beself-supporting and is not the custodial parent, the record supports the Supreme Court's decisionto deny an award of maintenance to the mother (see Bernholc v Bornstein, 72 AD3d 625 [2010]; Atkinson vAtkinson, 289 AD2d 907 [2001]; Graham v Graham, 175 AD2d 540 [1991]).
In determining child support, "a court need not rely upon the party's own account of his orher finances, but may impute income based upon the party's past income or demonstrated earningpotential" (Herlitz-Ferguson vHerlitz-Ferguson, 48 AD3d 418, 419 [2008] [internal quotation marks omitted]). Here,the Supreme Court properly imputed income to both the father and the mother based upon thepast income of the father and the earning potential and extrapolated past annual earnings of themother (see Spreitzer v Spreitzer,40 AD3d 840 [2007]).
The mother's arguments regarding equitable distribution are not properly before this Court.The issue of equitable distribution was resolved by stipulation of the parties entered into on July27, 2007. At no time did the mother seek to vacate or otherwise modify that stipulation and, thus,she may not collaterally attack or otherwise alter the terms of the stipulation on this appeal (see Sweeney v Sweeney, 71 AD3d989 [2010]).
The parties' remaining contentions are without merit. Mastro, J.P., Santucci, Roman andSgroi, JJ., concur.