| Reale v Reale |
| 2013 NY Slip Op 01539 [104 AD3d 747] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Joseph Reale, Appellant, v Teresa Reale,Respondent. |
—[*1] Barbara J. Strauss, Goshen, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Westchester County(Tolbert, J.), entered September 26, 2011, which, after a nonjury trial, inter alia, (1)directed him to pay the sum of $415 per week in child support, (2) awarded thedefendant certain real property located in Franklin, New York, as her separate property,(3) directed him to pay the defendant the sum of $6,000, purportedly representing 20% ofthe increase in the value of certain property located in Somers, New York, (4) directedhim to pay the defendant the sum of $62,500, representing her share of the plaintiff'srestaurant business, and (5) directed the sale of the former marital residence.
Ordered that the appeal from so much of the judgment as directed the plaintiff to paythe defendant the sum of $62,500, representing the defendant's share of the plaintiff'srestaurant business, is dismissed because the plaintiff has not provided an adequateappendix; and it is further,
Ordered that the appeal from so much of the judgment as directed the sale of theformer marital residence is dismissed as academic; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofdirecting the plaintiff to pay the defendant the sum of $6,000, purportedly representing20% of the increase in the value of certain property located in Somers, New York; as somodified, the judgment is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
" 'An appellant who perfects an appeal by using the appendix method must file anappendix that contains all the relevant portions of the record in order to enable the courtto render an informed decision on the merits of the appeal' " (Gandolfi v Gandolfi, 66 AD3d834, 835 [2009], quoting NYCTL 1998-1 Trust v Shahipour, 29 AD3d 965, 965[2006]; see Mure v Mure,92 AD3d 653 [2012]). "The appendix shall contain those portions of the recordnecessary to permit the court to fully consider the issues which will be raised by theappellant and the respondent" (22 NYCRR 670.10.2 [c] [1]; see CPLR 5528 [a][5]; Mure v Mure, 92 AD3d at 653). Here, the plaintiff omitted from hisappendix certain evidence proffered by the defendant at the trial relating to the plaintiff'srestaurant business. This omission "inhibit[s] the court's ability to render an informeddecision on the merits of the appeal" (Matter of Embro v Smith, 59 AD3d 542, 542 [2009][internal [*2]quotation marks omitted]; see Mure vMure, 92 AD3d at 653). Accordingly, the appeal from so much of the judgment asdirected the plaintiff to pay the defendant the sum of $62,500, representing thedefendant's share of the plaintiff's restaurant business, must be dismissed.
Moreover, inasmuch as both parties concede that the former marital residence wasforeclosed upon, the appeal from so much of the judgment as directed the sale of theformer marital residence must be dismissed as academic.
The Supreme Court properly imputed to the plaintiff an annual income of $127,000,and correctly directed him to pay $415 per week in child support. "In determining aparent's child support obligation, a court need not rely upon the parent's own account ofhis or her finances, but may impute income based upon the parent's past income ordemonstrated earning potential" (Baumgardner v Baumgardner, 98 AD3d 929, 930 [2012];see Matter of Huddleston vRufrano, 98 AD3d 1046, 1047 [2012]; Matter of Rohme v Burns, 92 AD3d 946, 947 [2012]).
Additionally, the Supreme Court properly awarded to the defendant certain propertylocated in Franklin, New York, as her separate property. This property had been acquiredby the defendant before the parties' marriage, and improvements were made with thedefendant's separate funds (see Domestic Relations Law § 236 [B] [1] [d][1]; Murphy v Murphy, 4AD3d 460, 461 [2004]).
However, the Supreme Court erred in directing the plaintiff to pay the defendant thesum of $6,000, which purportedly represented 20% of the increase in the value of certainproperty located in Somers, New York. There is no evidence to support the court'scalculation of the increase in the value of this property. Although the Supreme Courtdirected the parties to complete an appraisal of that property, no such appraisal wasconducted.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon,Leventhal and Chambers, JJ., concur.