| Wesche v Wesche |
| 2010 NY Slip Op 07746 [77 AD3d 921] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Dawn J. Wesche, Respondent, v Edward Wesche,Appellant. |
—[*1] Foster, Vandenburgh & Riyaz, LLP, Riverhead, N.Y. (Frederic C. Foster and Erik C. Howardof counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Suffolk County (Cohen, J.), entered May 13,2009, as, upon a decision of the same court dated October 24, 2008, and an order of the samecourt dated February 13, 2009, modifying the decision, made after a nonjury trial, directed him topay the plaintiff the sum of $1,000 per month in maintenance from the date of thecommencement of the action until November 1, 2010, and thereafter pay the plaintiff the sums of$750 per month until November 1, 2012, and $500 per month until November 1, 2013, directedthe plaintiff to pay him the sum of only $188.91 per week in child support, directed him to paythe plaintiff the sum of $395,000 as her share in his funeral home business, directed him to pay90% of the fee for a forensic accountant, and directed him to pay $35,000 as a fee for theplaintiff's attorney.
Ordered that the judgment is modified, on the law, by adding thereto a provision terminatingthe defendant's maintenance obligations upon the death of either party or the plaintiff'sremarriage; as so modified, the judgment is affirmed insofar as appealed from, with costs.
The plaintiff, Dawn J. Wesche, and the defendant, Edward Wesche, were married onDecember 29, 1984. In 1989, the defendant went into business with a partner to buy a funeralhome in Suffolk County. The plaintiff operated a separate business which provided headstones,and she ran a small karaoke business. The plaintiff commenced this action for divorce in March2004. The parties had two unemancipated children at the time the action was commenced.
Before the trial, the parties stipulated that the total value of the defendant's interest in thefuneral home business was $760,000. At trial, the plaintiff testified that the defendant hadattempted to conceal his income when his ex-wife had moved for an increase in child support forhis son from his previous marriage. A forensic accountant testified that the defendant admittedthat he received approximately $25,000 in unreported annual income.[*2]
In its decision after trial dated October 24, 2008, theSupreme Court imputed an additional $5,000 per year as income to the defendant for personal carexpenses paid for by the funeral home. The Supreme Court further imputed the additional sumsof $18,000 as annual income to the defendant based upon cash received from the funeral homeand used for personal expenses and $19,500 for undistributed earnings of the funeral home.Regarding maintenance, the Supreme Court directed the defendant to pay the plaintiff, beginningon November 1, 2008, the sums of $1,000 per month for the first two years, $750 per month forthe next two years, and $500 per month until November 1, 2013. The plaintiff moved to modifythe decision so that the maintenance award would be retroactive to the date of her initialapplication therefor. In an order dated February 13, 2009, the Supreme Court granted theplaintiff's motion.
In a judgment entered May 13, 2009, the Supreme Court directed the defendant to pay theplaintiff the sums of $1,000 per month in maintenance from the date of the commencement of theaction until November 1, 2010, $750 per month until November 1, 2012, and $500 per monthuntil November 1, 2013. The plaintiff was directed to pay child support in the sum of $188.91per week. The Supreme Court directed that the defendant pay 90% of the fee for the forensicaccountant, and awarded the plaintiff $35,000 as an attorney's fee payable by the defendant. Thedefendant appeals.
The defendant argues on appeal that the Supreme Court should have included a provision inthe judgment stating that his maintenance obligation would terminate upon the death of eitherparty or the plaintiff's remarriage (seegenerally Skladanek v Skladanek, 60 AD3d 1035, 1037 [2009]). Inasmuch as theplaintiff agrees with the defendant, and consents to such a modification of the judgment, wemodify the judgment accordingly.
A court need not rely upon a party's own account of his or her finances, but may imputeincome based upon the party's past income or demonstrated future potential earnings (seeBrown v Brown, 239 AD2d 535 [1997]). The court may impute income to a party based onhis or her employment history, future earning capacity, educational background, or moneyreceived from friends and relatives (see Matter of Collins v Collins, 241 AD2d 725, 727[1997]). Where a party's account is not believable, the court may impute a true or potentialincome higher than alleged (see Lilikakis v Lilikakis, 308 AD2d 435, 436 [2003]). Here,the Supreme Court providently exercised its discretion in imputing income to the defendantbased on, among other things, the evidence of his attempts to conceal his true income.
With respect to the maintenance award, the defendant argues that the Supreme Court erred inchanging the start date and duration of maintenance payments between the time it issued thedecision and the time it issued the judgment. However, the Supreme Court modified its decisionby issuing an order granting the plaintiff's motion to make the maintenance payments retroactive;thus, the judgment conformed to the decision (cf. Scheuering v Scheuering, 27 AD3d 446, 447 [2006]).
The defendant's argument that the Supreme Court failed to account for the consequences ofembedded capital gains taxes in determining the value of the defendant's interest in the funeralhome business for equitable distribution purposes is without merit, as the defendant had alreadyentered into a stipulation with the plaintiff establishing the value of that business (seegenerally Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]).
A court must consider the equities and circumstances of each particular case and the parties'respective financial positions in determining a counsel fee application (Palumbo v Palumbo, 10 AD3d680, 682 [2004]). Here, the Supreme Court providently exercised its discretion in awarding acounsel fee to the plaintiff. Moreover, the Supreme Court providently exercised its discretion indirecting the defendant to pay 90% of the forensic accountant's fee (see Cash-Scher vScher, 299 AD2d 193, 193-194 [2002]).
The defendant's remaining contentions are without merit. Covello, J.P., Santucci, Balkin andAustin, JJ., concur.