| O'Brien v O'Brien |
| 2011 NY Slip Op 07208 [88 AD3d 775] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Adelaida O'Brien, Respondent, v Kevin O'Brien,Appellant. |
—[*1] Mark D. Stern, Goshen, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of a judgment of the Supreme Court, Orange County (Giacomo, J.), datedNovember 30, 2009, as, upon a decision of the same court dated October 15, 2009, made after anonjury trial, awarded the plaintiff child support in the amount of $2,625 per month, plus childsupport arrears, awarded the plaintiff maintenance for a period of 10 years in the amount of$1,375 per month, to increase as each of the parties' six children becomes emancipated, plusmaintenance arrears, awarded him visitation with the parties' children only on alternateweekends, certain holidays, and on Wednesday nights for two hours, and awarded the plaintiff anattorney's fee in the sum of $10,000, (2) from a money judgment of the same court dated May 11,2010, which, upon the decision and the judgment, is in favor of the plaintiff and against him inthe sum of $10,000, and (3), as limited by his brief, from so much an order of the same courtdated June 25, 2010, as denied his motion to vacate and modify certain portions of the judgmentdated November 30, 2009.
Ordered that the appeals from the money judgment and from so much of the order as deniedthose branches of the defendant's motion which were to vacate and modify the portions of thejudgment dated November 30, 2009, awarding the plaintiff child support and child supportarrears, maintenance and maintenance arrears, and an attorney's fee are dismissed as academic inlight of our determination on the appeal from the judgment dated November 30, 2009, withoutcosts or disbursements; and it is further,
Ordered that the judgment is modified, on the law and the facts, by deleting the provisionsthereof awarding the plaintiff child support in the amount of $2,625 per month plus child supportarrears, maintenance for a period of 10 years in the amount of $1,375 per month, to increase aseach of the parties' six children becomes emancipated, plus maintenance arrears, and anattorney's fee in the sum of $10,000; as so modified, the judgment is affirmed insofar as appealedfrom, without costs or disbursements, the money judgment and the provisions of the orderdenying those branches of the defendant's motion which were to vacate and modify the portionsof the judgment [*2]awarding the plaintiff child support and childsupport arrears, maintenance and maintenance arrears, and an attorney's fee are vacated, and thematter is remitted to the Supreme Court, Orange County, for a recalculation of the parties'respective incomes and the amounts to be awarded to the plaintiff for monthly child support plusarrears, monthly maintenance plus arrears, and an attorney's fee, and the entry of an appropriateamended judgment thereafter; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements; and itis further,
Ordered that in the interim the defendant shall continue to pay the plaintiff the sum of $2,625per month in child support and the sum of $1,375 per month in maintenance.
As memorialized in a decision made after a nonjury trial in this matrimonial action, theSupreme Court found that the plaintiff former wife had an annual income of $33,262 from allsources, and the defendant former husband had an annual income of $115,747 from all sources.The parties were divorced by judgment dated November 30, 2009. In addition to child support of$2,625 per month, plus support arrears, the Supreme Court awarded the plaintiff maintenance inthe amount of $1,375 per month over a period of 10 years, to increase as each of the parties' sixchildren becomes emancipated, so that the plaintiff will receive the total sum of $4,000 permonth in combined child support and maintenance for a period of 10 years, plus maintenancearrears. The Supreme Court also awarded the plaintiff an attorney's fee in the amount of $10,000.The plaintiff was to remain in the marital residence and pay all carrying costs.
The awards of child support, maintenance, arrears, and an attorney's fee were based upon theSupreme Court's calculation of the parties' respective incomes. The defendant correctly contendsthat the Supreme Court made a mathematical error in calculating the plaintiff's income. Thenumbers reflecting the various components of the plaintiff's annual income, as set forth by theSupreme Court in its decision, add up to a total of $54,163, not $33,262, as erroneously stated bythe Supreme Court. A court has the inherent power to relieve a party from judgments takenthrough mistake or inadvertence in the interest of justice (see Matter of McKenna v County ofNassau, Off. of County Attorney, 61 NY2d 739, 742 [1984]; Katz v Marra, 74 AD3d 888, 890[2010]; Hanlon v Thonsen, 146 AD2d 743, 744 [1989]). In light of the calculation errornoted above, the awards of child support, maintenance, arrears, and an attorney's fee must berecalculated based on the correct figures.
Further, with respect to one of the components of the defendant's annual income, theSupreme Court attributed an incorrect amount. Three of the components are supported by therecord: a disability pension in the annual sum of $38,400, salary in the sum of $49,105 annually,and annual income in the amount of $18,000 from the defendant's video duplicating serviceKOBICS, formerly known as ServAssist. However, the record does not support the SupremeCourt's calculation and imputation of the sum of $15,376 in annual benefits from the defendant'semployer for use of an automobile and cell phone, along with the employer's payment ofexpenses attributable to the use of those items. Domestic Relations Law § 240 (1-b) (b) (5)(iv) (B) provides that the Supreme Court may, in its discretion, "attribute or impute income from. . . automobiles or other perquisites that are provided as part of compensation foremployment to the extent [they] constitute expenditures for personal use, or . . .directly or indirectly confer personal economic benefits." Here, although the defendant'semployer expended the sum of $15,376 in 2007 for the defendant's use of an automobile and cellphone and related expenses, the amount attributable to income is considerably smaller in light ofthe defendant's testimony that only 10% of his use of the automobile, and only a "portion" of hisuse of the cell phone, were personal uses.
Upon remittal for recalculation, the discrepancy between the parties' incomes will necessarilybe smaller than previously calculated, and, accordingly, the defendant's pro rata share of the basicchild support obligation must be recalculated. Further, upon remittal, the Supreme Court mustrecalculate the award of maintenance based upon factors including the parties' respective incomesas recalculated, their predivorce standard of living, and the financial resources of each,considered separately, balancing the plaintiff's needs with the defendant's ability to pay (seeKover v Kover, 29 NY2d 408, 416 [1972]; Litvak v Litvak, 63 AD3d 691, 692 [2009]; Berlin v Berlin,36 AD2d 763, 764 [1971]). [*3]Moreover, the maintenance awardshould not provide for an automatic increase upon the prospective emancipation of each of theparties' children. Maintenance is designed to give the spouse economic independence and shouldcontinue only as long as necessary to render the recipient self-supporting. The award should meetthe recipient spouse's reasonable needs while providing an appropriate incentive for the recipientto become financially independent (seeGriggs v Griggs, 44 AD3d 710, 712 [2007]; Granade-Bastuck v Bastuck, 249AD2d 444, 446 [1998]). The amount of the maintenance award is a discretionary determinationbased upon a number of interrelated facts then in existence; unless a future event is imminent andmeasurable, an award of maintenance should not include a provision for increase or decreaseupon the happening of a particular future event (see Majauskas v Majauskas, 61 NY2d481, 494-495 [1984]; Dawson v Dawson, 152 AD2d 717, 720 [1989]). Here, theprovision for automatic increase of maintenance upon the emancipation of each of the parties'children ignores other factors which may come into existence at the time of each child'semancipation. Therefore, the parties' changing needs are best addressed in a future application formodification of the amount of maintenance (see Lesman v Lesman, 88 AD2d 153, 161[1982]; Gallo v Gallo, 50 AD2d 830 [1975]).
Contrary to the defendant's contention, the award of visitation, which included alternateweekends and certain holidays in addition to two hours for dinner every Wednesday, had a soundand substantial basis in the record, and will not be disturbed (see Matter of Larkin v White, 79 AD3d 751 [2010]; Matter of Mohabir v Singh, 78 AD3d1056, 1056-1057 [2010]).
An award of an attorney's fee is a matter for the trial court's discretion, which requiresconsideration of factors including the merits of the parties' positions and their respective financialcircumstances (see Raynor vRaynor, 68 AD3d 835, 839 [2009]). On the record presented, including the apparentdiscrepancy between the parties' income and other circumstances, the Supreme Court did notimprovidently award the plaintiff an attorney's fee (id.; see Sinanis v Sinanis, 67 AD3d773, 774 [2009]; Litvak vLitvak, 63 AD3d 691 [2009]). However, the amount of the award was premised upon anerroneous calculation of the parties' respective incomes. Upon recalculation, that discrepancy willbe necessarily smaller. Accordingly, upon remittal, the Supreme Court must recalculate anappropriate award to the plaintiff of an attorney's fee. Angiolillo, J.P., Dickerson, Hall andMiller, JJ., concur.