| Morille-Hinds v Hinds |
| 2011 NY Slip Op 06120 [87 AD3d 526] |
| August 2, 2011 |
| Appellate Division, Second Department |
| Theodora Morille-Hinds, Respondent, v Alfred Hinds,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Queens County (Gartenstein, J.H.O.),entered June 15, 2010, which, upon a decision of the same court dated October 16, 2009, madeafter a nonjury trial, inter alia, awarded him only 15% of the value of the parties' real property,the plaintiff's retirement accounts, and certain bank accounts, and imputed an annual income tohim in the sum of $80,000 for the purpose of his child support obligation, and thereupon directedhim to pay child support in the sum of $233 per week.
Ordered that the judgment is reversed insofar as appealed from, on the law, on the facts, andin the exercise of discretion, with costs, and the matter is remitted to the Supreme Court, QueensCounty, for further proceedings consistent herewith and for the entry of an appropriate amendedjudgment thereafter.
The guiding principle of equitable distribution is that "both parties in a matrimonial actionare entitled to fundamental fairness in the allocation of marital assets, and that the economic andnoneconomic contributions of each spouse are to be taken into account" (Holterman v Holterman, 3 NY3d1, 8 [2004]). The factors a court must consider in distributing marital property are set forthin Domestic Relations Law § 236 (B) (5) (d). " 'In fashioning an award of equitabledistribution, the Supreme Court is required to discuss the statutory factors it relied upon indistributing marital property' " (Spera vSpera, 71 AD3d 661, 662 [2010], quoting Milnes v Milnes, 50 AD3d 750, 750 [2008]; see DomesticRelations Law § 236 [B] [5] [g]). Nevertheless, " '[w]here it is evident that the SupremeCourt considered all relevant factors and the reasons for its decision are articulated, the court isnot required to specifically cite to and analyze each statutory factor' " (Spera v Spera, 71AD3d at 662, quoting Milnes v Milnes, 50 AD3d at 750). Although this Court has thesame power to distribute marital property as the trial court (see O'Brien v O'Brien, 66NY2d 576, 589 [1985]; Kobylack v Kobylack, 62 NY2d 399, 403 [1984]; Spera vSpera, 71 AD3d at 662), "absent a detailed record of the reasoning employed by the SupremeCourt," this Court may "remit the matter to the Supreme Court for a new determination based onfindings of fact in compliance with Domestic Relations Law § 236 (B) (5) (g)" (Rossi vRossi, 137 AD2d 590, 591 [1988]; see O'Brien v O'Brien, 66 NY2d at 589; McLoughlin v McLoughlin, 74 AD3d911, 915 [2010]; Gape v Gape, 110 AD2d 621, 622 [1985]).
Here, the Supreme Court failed to set forth the factors it considered in distributing [*2]the parties' property, instead making only conclusory assertionsregarding the defendant's contribution to the value of the marital estate which were not supportedby the record (see McLoughlin v McLoughlin, 74 AD3d at 915; Rossi v Rossi,137 AD2d 590 [1988]; Domestic Relations Law § 236 [B] [5] [g]). Moreover, theSupreme Court improperly disregarded unrefuted record evidence that, through his skilled labor,the defendant made significant contributions to the value of the parties' real property (see Johnson v Chapin, 12 NY3d461, 466 [2009]; Dougherty v Dougherty, 256 AD2d 714, 715 [1998]; Cincotta vCincotta, 221 AD2d 306, 307 [1995]; Domestic Relations Law § 236 [B] [5] [d] [7]).Likewise, although the Supreme Court summarily dismissed the defendant's contentions inconnection with his contributions to child care, its findings are not consistent with the record.The defendant's contribution to the care of the parties' child should have been considered infashioning an equitable distribution of the marital assets (see Domestic Relations Law§ 236 [B] [5] [d] [7]; Holterman v Holterman, 3 NY3d at 8-9; Granade-Bastuckv Bastuck, 249 AD2d 444, 445 [1998]; Kaplinsky v Kaplinsky, 198 AD2d 212, 213[1993]; but see Naimollah v DeUgarte, 18 AD3d 268, 269 [2005]). Accordingly, the matter must be remitted to theSupreme Court, Queens County, for a new determination regarding the equitable distribution ofassets for which the defendant received only 15% of the value.
In setting a party's child support obligation, a court "is not bound by a party's actual reportedincome," but may instead base the party's obligation upon his or her "actual earning capacity" (Matter of Solis v Marmolejos, 50AD3d 691, 692 [2008]; see Matterof Muselevichus v Muselevichus, 40 AD3d 997, 998-999 [2007]). The imputed incomemay properly be based upon "a parent's prior employment experience . . . or theincome such parent is capable of earning by honest efforts, given his [or her] education andopportunities" (Matter of Bibicoff vOrfanakis, 48 AD3d 680, 681 [2008] [internal quotation marks omitted]; see Matter of Genender v Genender, 51AD3d 669, 670 [2008]; Matter ofThompson v Perez, 42 AD3d 503, 504 [2007]). In so doing, a court is afforded"considerable discretion" (Matter ofJulianska v Majewski, 78 AD3d 1182, 1183 [2010]). However, "the calculation of theparty's earning potential must have some basis in law and fact" (Gezelter v Shoshani, 283AD2d 455, 456 [2001]).
While a trial court's credibility determinations are entitled to great deference on appeal(see Matter of Julianska v Majewski, 78 AD3d at 1183; Matter of Donato v Donato, 43 AD3d920, 921 [2007]; Matter of Musarrav Musarra, 28 AD3d 668, 669 [2006]), the Supreme Court's determination that thedefendant could earn $80,000 annually lacks support in the record (compare Gezelter vShoshani, 283 AD2d at 456-457). Likewise, the Supreme Court failed to discuss the mannerin which it calculated support on parental income in excess of $80,000 annually or the factorswhich it considered. Accordingly, the matter must also be remitted to the Supreme Court, QueensCounty, for a new calculation of the defendant's child support obligation and arrears, if any(see Family Ct Act § 413 [1] [c] [3]; Matter of Cassano v Cassano, 85NY2d 649, 654 [1995]; Matter of Millerv Miller, 55 AD3d 1267, 1268-1269 [2008]; Matter of Byrne v Byrne, 46 AD3d 812, 814 [2007]; Mercer v Mercer, 4 AD3d 508,510 [2004]; Matter of Wienands v Hedlund, 305 AD2d 692, 693 [2003]; Matter ofGluckman v Qua, 253 AD2d 267, 270-271 [1999]). Rivera, J.P., Florio, Austin and Cohen,JJ., concur.