| Sotnik v Zavilyansky |
| 2012 NY Slip Op 09045 [101 AD3d 1102] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Regina Sotnik, Respondent, v Sergey Zavilyansky,Appellant. |
—[*1] Bonnie P. Josephs, New York, N.Y., for respondent.
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, Kings County (Morgenstern, J.), datedApril 12, 2010, which, inter alia, upon a decision and order of the same court dated January 6,2010, made after a nonjury trial, among other things, imputed to him an annual income of$135,000 for the purpose of calculating his child support obligation, awarded the plaintiff anattorney's fee in the sum of $75,000, awarded the plaintiff exclusive occupancy of the formermarital residence until the parties' child attains the age of 21 years, failed to direct that his childsupport obligation shall be decreased by the amount of any college room and board expenses heincurs while the parties' child attends college, credited the plaintiff the sum of $124,876 based onthe defendant's wasteful dissipation of marital property, failed to award him a portion of theplaintiff's enhanced earning capacity from her medical license, and failed to provide that the lifeinsurance policy which he is required to provide and maintain to secure his obligations to pay theaward of child support may be a declining term policy that would permit him to reduce theamount of coverage by the amount of the child support actually paid.
Ordered that the judgment is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof awarding the plaintiff exclusive occupancy of the former maritalresidence until the parties' child attains the age of 21, and substituting therefor a provisionawarding the plaintiff exclusive occupancy of the former marital residence until the parties' childattains the age of 18, (2) by adding a provision thereto directing that the defendant's child supportobligation shall be decreased by the amount of any college room and board expenses he incurswhile the parties' child attends college, (3) by adding a provision thereto directing that the lifeinsurance policy which the defendant is required to provide and maintain to secure hisobligations to pay the award of child support may be a declining term policy that would permithim to reduce the amount of coverage by the amount of child support actually paid, and (4) bydeleting the provision thereof crediting the plaintiff the sum of $124,876 based on the defendant'swasteful dissipation of marital property, and substituting therefor a provision crediting theplaintiff the sum of $93,438 based on the defendant's wasteful dissipation of marital property; asso modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.[*2]
In determining the length of time that a custodial parentshould be granted exclusive occupancy of the former marital residence, the appropriateconsideration involves an appropriate balancing of " 'the need of the custodial parent to occupythe marital residence . . . against the financial need of the parties' " (Gahagan v Gahagan, 76 AD3d538, 540 [2010], quoting Goldblum v Goldblum, 301 AD2d 567, 568 [2003]; see Mosso v Mosso, 84 AD3d757, 760 [2011]). Under the circumstances of this case, the Supreme Court should haveawarded the plaintiff exclusive occupancy of the former marital residence only until the parties'son attains the age of 18 years, rather than until he turns 21 years old (see Mosso vMosso, 84 AD3d at 760; Gahagan vGahagan, 76 AD3d 538 [2010]; Cabeche v Cabeche, 10 AD3d 441 [2004]; Waldmann vWaldmann, 231 AD2d 710 [1996]).
" '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' " (Haagen-Islami v Islami, 96 AD3d1004, 1005 [2012], quoting Duffy vDuffy, 84 AD3d 1151, 1151-1152 [2011]; see Cusumano v Cusumano, 96 AD3d 988, 989 [2012]). " 'Thecourt may impute income to a party based on his or her employment history, future earningcapacity, educational background, or money received from friends and relatives' "(Haagen-Islami v Islami, 96 AD3d at 1005, quoting Duffy v Duffy, 84 AD3d at1152). Here, given the defendant's earning history from his private medical corporations, hiscurrent employment as a medical doctor, and his other income from his associations withKingsbrook Medical Center, the Supreme Court providently exercised its discretion in imputingan annual income to the defendant of $135,000 for the purpose of calculating his child supportobligation.
As the defendant correctly contends, the Supreme Court should have directed that his childsupport obligation be decreased by the amount of any college room and board expenses he incurswhile the parties' child attends college (see Ayers v Ayers, 92 AD3d 623, 625 [2012]; Matter of Levy v Levy, 52 AD3d717, 718 [2008]; Reinisch v Reinisch, 226 AD2d 615 [1996]).
The Supreme Court should have allowed the defendant to secure his child supportobligations by maintaining a declining term policy of life insurance rather than requiring him tomaintain the existing policy coverage of $1,400,000 (see Jayaram v Jayaram, 62 AD3d 951, 954 [2009]; Matter of Moran v Grillo, 44 AD3d859, 861 [2007]; see also Matter ofAnonymous v Anonymous, 31 AD3d 955, 957 [2006]).
In making its equitable distribution award, the Supreme Court credited the plaintiff the sumof $124,876 based on what it termed the defendant's "wasteful dissipation" of marital property.This included $50,000 that the defendant used to retain an attorney in connection with hismedical license, which license constituted separate property since he obtained it prior to themarriage (see Domestic Relations Law § 236 [B] [1] [d] [1]; Dewell vDewell, 288 AD2d 252 [2001]). However, since the $50,000 was marital property, theplaintiff should have been credited only one half of that sum, or $25,000 (see Khan v Ahmed, 98 AD3d 471,473 [2012]; Dewell v Dewell, 288 AD2d at 252). The $124,876 credit also included thesum of $11,645 representing the amount the defendant had withdrawn from a joint businessaccount, and the sum of $1,231 representing marital funds used by the defendant to pay for anapplication for a Florida medical license. Since these were marital funds, the Supreme Courtshould have credited the plaintiff with only one half of these amounts as well (seeDomestic Relations Law § 236 [B] [1] [c]; Marshall v Marshall, 91 AD3d 610, 611 [2012]; cf. Dewell vDewell, 288 AD2d at 252).
Under the circumstances of this case, where the defendant's contribution to the plaintiff'sattainment of her medical license was de minimis, the Supreme Court providently exercised itsdiscretion in determining that the defendant was not entitled to any distributive share of theplaintiff's enhanced earning capacity from her medical license (see Cabeche v Cabeche, 10 AD3d441 [2004]; see also Esposito-Sheav Shea, 94 AD3d 1215, 1218 [2012]).
The award of counsel fees to the plaintiff was a provident exercise of discretion (seeDomestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d879, 881 [1987]; Levy v Levy, 289 AD2d 379, 380 [2001]; Krutyansky vKrutyansky, 289 AD2d 299, 300 [2001]; Ferina v Ferina, 286 AD2d 472, 475[2001]).[*3]
The defendant's remaining contentions are without merit.Mastro, J.P., Lott, Austin and Cohen, JJ., concur.