| Baumgardner v Baumgardner |
| 2012 NY Slip Op 06116 [98 AD3d 929] |
| September 12, 2012 |
| Appellate Division, Second Department |
| William Baumgardner, Appellant, v Coleen Baumgardner,Respondent. |
—[*1] Coleen Baumgardner, Bayport, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, (1)from stated portions of a decision of the Supreme Court, Suffolk County (Bivona, J.), dated April20, 2011, made after a nonjury trial, and (2) from so much of a judgment of the same courtentered September 28, 2011, as, upon the decision, directed him to pay to the defendant childsupport for the parties' youngest son in the sum of $1,063.21 per month, directed the defendant topay to him child support for the parties' oldest son in the sum of only $282.62 per month, and, ineffect, awarded sole ownership of the defendant's retirement account to the defendant.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510 [1984]); and it isfurther,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The parties were married on March 22, 1997. There are two children of the marriage. Theplaintiff commenced this action for a divorce and ancillary relief on March 17, 2008. After aninquest on grounds for divorce, the Supreme Court found that the plaintiff husband establishedthe grounds for divorce. Thereafter, the parties executed stipulations as to, inter alia, custody,visitation, and partial equitable distribution, and referred to the court resolution of, among otherthings, child support and equitable distribution of the parties' respective retirement accounts. In adecision dated April 20, 2011, the court, inter alia, determined that each party would be awardedsole ownership of his or her respective retirement accounts, that the plaintiff would pay to thedefendant child support for the parties' youngest son in the sum of $1,063.21 per month, and thatthe defendant would pay to the plaintiff child support for the parties' oldest son in the sum of$282.62 per month. The judgment of divorce entered September 28, 2011, among other things,incorporated those determinations.
In determining a parent's child support obligation, a court need not rely upon the parent's ownaccount of his or her finances, but may impute income based upon the parent's past income ordemonstrated earning potential (seeMatter of Rohme v Burns, 92 AD3d 946, 947 [2012]; [*2]DeSouza-Brown v Brown, 71 AD3d 946, 947 [2010]; Rosenberg v Rosenberg, 44 AD3d1022, 1025 [2007]; Matter ofStrella v Ferro, 42 AD3d 544, 546 [2007]). The court may impute income based on theparent's employment history, future earning capacity, educational background, or money receivedfrom friends and relatives (see Matter of Rohme v Burns, 92 AD3d at 947; Matter of Bouie v Joseph, 91 AD3d641, 642 [2012]). Where the parent's account of his or her income is not credible, the courtmay impute an income higher than that claimed (see Matter of Rohme v Burns, 92 AD3dat 947; Matter of Bouie v Joseph, 91 AD3d at 642). Moreover, a court may imputeincome where the parent has received money, goods, or services from a relative or friend(see Domestic Relations Law § 240 [1-b] [b] [5] [iv] [D]; Family Ct Act §413 [1] [b] [5] [iv] [D]; Matter of Rohme v Burns, 92 AD3d at 947). Here, the recordsupports the Supreme Court's determination that the plaintiff's testimony lacked credibility andthat an imputation of income higher than that claimed was warranted. The court properlydetermined that the plaintiff has access to, and receives, financial support from his family.Considering these factors and all of the evidence presented, the court providently exercised itsdiscretion in imputing income to the plaintiff in the sum of $75,000 per year (see Matter ofRohme v Burns, 92 AD3d at 947; DeSouza-Brown v Brown, 71 AD3d at 947; Matter of Sena v Sena, 65 AD3d1244, 1245 [2009]; Khaimova vMosheyev, 57 AD3d 737, 737-738 [2008]; Matter of Strella v Ferro, 42 AD3d at546). Moreover, based on the evidence presented, the record supports the court's imputation ofincome to the defendant in the sum of $20,000 annually.
In calculating a parent's child support obligation, "child support actually paid pursuant tocourt order or written agreement on behalf of any child for whom the parent has a legal duty ofsupport and who is not subject to the instant action" shall be deducted from income (DomesticRelations Law § 240 [1-b] [b] [5] [vii] [D]). Contrary to the plaintiff's contention, theSupreme Court did not err in failing to deduct from his income claimed child support for theplaintiff's child of a former marriage, where there was no evidence establishing that the plaintiffactually paid child support to the custodial parent of that child (see Curran v Curran, 2 AD3d 391,392 [2003]).
There is no merit to the plaintiff's contention that the Supreme Court erred in taking judicialnotice of the defendant's net worth statements which had been filed with the court pursuant tosection 236 of the Domestic Relations Law and 22 NYCRR 202.16 (b).
The Domestic Relations Law mandates that the equitable distribution of marital assets bebased on the circumstances of the particular case and directs the trial court to consider a numberof statutory factors (see Holterman vHolterman, 3 NY3d 1, 7 [2004]; Domestic Relations Law § 236 [B] [5] [d]).There is no requirement that the distribution of each item of marital property be made on anequal basis (see DeSouza-Brown v Brown, 71 AD3d at 946; Peritore v Peritore, 66 AD3d 750,752-753 [2009]; Griggs v Griggs,44 AD3d 710, 713 [2007]). Here, the Supreme Court providently exercised its discretion by,in effect, awarding sole ownership of the defendant's retirement account to the defendant (seeDeSouza-Brown v Brown, 71 AD3d at 946). Rivera, J.P., Dickerson, Hall and Miller, JJ.,concur.