| Elias v Elias |
| 2012 NY Slip Op 08688 [101 AD3d 938] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Cathy Elias, Appellant-Respondent, v Albert Elias,Respondent-Appellant. |
—[*1] Glenn S. Koopersmith, Garden City, N.Y. (Steven J. Eisman and Michael E. Ratner ofcounsel), for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), enteredMarch 8, 2011, which, upon a decision of the same court dated October 6, 2010, and an amendeddecision dated December 15, 2010, made after a nonjury trial, inter alia, awarded her only 25%of the value of the defendant's interest in certain business entities, and awarded her child supportin the sum of only $192.31 per week, and the defendant cross-appeals, as limited by his brief,from so much of the same judgment as awarded the plaintiff 25% of the value of his interest incertain business entities.
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff child support in the sum of $192.31 per week; as so modified, thejudgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, andthe matter is remitted to the Supreme Court, Nassau County, for a new determination of thedefendant's child support obligation and the entry of an appropriate amended judgment thereafter;in the interim, the defendant shall continue to pay to the plaintiff child support in the sum of$192.31 per week.
Contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretionin awarding the plaintiff 25% of the value of the defendant's interest in Ben Elias Industries Corp."Although in a marriage of long duration, where both parties have made significant contributionsto the marriage, a division of marital assets should be made as equal as possible . . .there is no requirement that the distribution of each item of marital property be made on an equalbasis" (Baron v Baron, 71 AD3d807, 809 [2010] [internal quotation marks omitted]; see Arvantides v Arvantides, 64NY2d 1033, 1033 [1985]; Kaplan vKaplan, 51 AD3d 635, 637 [2008]; Griggs v Griggs, 44 AD3d 710, 713 [2007]). Here, the 25% share"takes into account the plaintiff's minimal direct and indirect involvement in the defendant'scompany, while not ignoring her contributions as the primary caretaker for the parties' children,which allowed the defendant to focus on his business" (Baron v [*2]Baron, 71 AD3d at 809; see Ventimiglia v Ventimiglia,307 AD2d 993, 994 [2003]; Chalif v Chalif, 298 AD2d 348, 349 [2002]).
However, the Supreme Court failed to properly calculate child support pursuant to the ChildSupport Standards Act (Domestic Relations Law § 240 [1-b]; hereinafter the CSSA). TheCSSA provides "a precisely articulated, three-step method for determining child support"(Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995]). The first step requires thecomputation of statutory "[c]ombined parental income" after which a limited number ofdeductions are allowed (Domestic Relations Law § 240 [1-b] [b] [4]; [c] [1]). Second, thecourt multiplies that figure, up to $130,000, by a specified percentage based upon the number ofchildren in the household—25% for two children—and then allocates that amountbetween the parents according to their share of the total income (see Domestic RelationsLaw § 240 [1-b] [b] [3]; [c] [2]). Finally in the third step, where combined parental incomeexceeds $130,000, "the court shall determine the amount of child support for the amount of thecombined parental income in excess of such dollar amount through consideration of the factorsset forth in paragraph (f) of [Domestic Relations Law § 240 (1-b)] and/or the child supportpercentage" (Domestic Relations Law § 240 [1-b] [c] [3]).
Here, in determining child support, the Supreme Court failed to set forth the manner in whichthe defendant's income was calculated (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]; Sirgant v Sirgant, 35 AD3d 437,438 [2006]). The Court also improperly deducted the distributive award from the defendant'sincome, a deduction that is not recognized in the CSSA (see Domestic Relations Law§ 240 [1-b] [b] [5] [vii] [A]-[H]; Holterman v Holterman, 3 NY3d 1, 10-11 [2004]). Still further, therecord indicates that the Supreme Court improperly capped the defendant's income at $125,000,which was below the statutory ceiling of $130,000 that became effective on January 31, 2010(see Domestic Relations Law § 240 [1-b] [c] [2]; Social Services Law §111-i [2] [b]; L 2009, ch 343; Lago vAdrion, 93 AD3d 697, 699 [2012]). Accordingly, we remit the matter to the SupremeCourt, Nassau County, for a recalculation of the defendant's child support obligation (seeMcLoughlin v McLoughlin, 63 AD3d at 1019).
The plaintiff's remaining contentions are without merit.
We do not consider the defendant's contention on his cross appeal, as it is improperly raisedfor the first time on the cross appeal (seeAbrams v Abrams, 57 AD3d 809, 810-811 [2008]; Levy v Levy, 289 AD2d 379,380 [2001]; Fascaldi v Fascaldi, 209 AD2d 576, 578 [1994]). Balkin, J.P., Roman, Sgroiand Cohen, JJ., concur.