| Schack v Schack |
| 2015 NY Slip Op 04303 [128 AD3d 941] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| Carmela M. Schack, Appellant, v Wayne P.Schack, Respondent. |
Gary P. Field, Huntington, N.Y., for appellant.
Sari M. Friedman, P.C., Garden City, N.Y. (Katherine Ryan of counsel), forrespondent.
Appeal from stated portions of a judgment of divorce of the Supreme Court, SuffolkCounty (Daniel Martin, J.), entered March 14, 2012. The judgment, inter alia, equallyapportioned certain marital debt and directed that the defendant's monthly payments tothe plaintiff for maintenance and child support be made retroactive only to February 1,2012.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof directing the defendant to paymaintenance for five years commencing on February 1, 2012, and substituting therefor aprovision directing the defendant to pay maintenance retroactive to December 28, 2007,and until the parties' youngest child, born March 31, 1997, attains the age of 21 years oris sooner emancipated, (2) by deleting the provision thereof awarding child support, and(3) by deleting the provision thereof awarding the plaintiff the sum of $66,395 for herequitable share of the appreciation of the defendant's convenience stores, and substitutingtherefor a provision awarding the plaintiff the sum of $132,790 for her equitable share ofthe appreciation of the defendant's convenience stores; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for a newdetermination of the amount of the defendant's child support obligation, which shall bemade retroactive to December 28, 2007, and for calculation of child support andmaintenance arrears based on that date, taking into account the actual amount, if any, ofmortgage and carrying charges paid by the defendant, and taking into account anymaintenance and child support, if any, paid by the defendant during the pendency of theaction, and for the entry of an appropriate amended judgment thereafter.
The Supreme Court did not improvidently exercise its discretion in determining thatthe plaintiff is liable for one half of the parties' tax obligation arising out of the failure topay proper income taxes during their marriage (see Cooper v Cooper, 84 AD3d 854, 857 [2011]; Conway v Conway, 29 AD3d725, 725-726 [2006]). Similarly, the court properly concluded that the plaintiff isliable for one half of the parties' marital credit card debt (see Domestic RelationsLaw § 236 [B] [5] [d]).
[*2] However, in awarding the plaintiff $3,100 per month in child support, the Supreme Courtfailed to articulate its reason or reasons for using half of the normal percentageapplicable to combined parental income over $130,000. The Child Support StandardsAct (see Domestic Relations Law § 240 [1-b]) sets forth a formulafor calculating child support by applying a designated statutory percentage, based uponthe number of children to be supported, to combined parental income up to the statutorycap that is in effect at the time of the judgment (see Holterman v Holterman, 3 NY3d 1, 11 [2004];Matter of Cassano v Cassano, 85 NY2d 649, 653-654 [1995]), here, $130,000(see Social Services Law § 111-i [2] [b]). With respect to combinedparental income exceeding that amount, the court has the discretion to apply the statutorychild support percentage, to apply the factors set forth in Domestic Relations Law§ 240 (1-b) (f) (see Matter of Cassano v Cassano, 85 NY2d at 654;Matter of Byrne v Byrne, 46AD3d 812, 814 [2007]), or to utilize "some combination of th[ose] two" methods(Poli v Poli, 286 AD2d 720, 723 [2001]; see Jordan v Jordan, 8 AD3d 444, 445 [2004]). The hearingcourt must " 'articulate its reason or reasons for [that determination], whichshould reflect a careful consideration of the stated basis for its exercise of discretion, theparties' circumstances, and its reasoning why there [should or] should not be a departurefrom the prescribed percentage' " (Wagner v Dunetz, 299 AD2d 347,350-351 [2002], quoting Matter of Schmitt v Berwitz, 228 AD2d 604, 605[1996]; see Matter of Cassano v Cassano, 85 NY2d at 655; Matter ofWienands v Hedlund, 305 AD2d 692, 693 [2003]). Here, the Supreme Court did notarticulate any of its reasoning in determining the child support award. Accordingly, theremust be a new determination of child support which shall include the statutory factorsconsidered and the reasons for such determination (see McCoy v McCoy, 107 AD3d 857, 858 [2013];Hohlweck v Hohlweck, 271 AD2d 571 [2000]; Zaremba v Zaremba, 222AD2d 500 [1995]; Jones v Reese, 217 AD2d 783 [1995]).
In addition, the Supreme Court incorrectly directed the defendant's maintenance andchild support obligations to commence on February 1, 2012, the date of the divorcejudgment. A party's maintenance and child support obligations commence, and areretroactive to, the date the applications for maintenance and child support were firstmade, which, in this case, was December 28, 2007 (see Domestic Relations Law§ 236 [B] [6] [a]; [7] [a]; Levitt v Levitt, 97 AD3d 543, 545 [2012]; Thomas vThomas, 161 AD2d 1151, 1152 [1990]).
Further, under the facts of this case, including the disparity in the financial status ofthe parties and the plaintiff's limited future earning capacity, the Supreme Courtimprovidently exercised its discretion in awarding maintenance for only a five-yearperiod. Instead, maintenance should continue until the date when the parties' youngestchild turns 21 or is sooner emancipated, which is also the date when the Supreme Courtdetermined that the plaintiff's exclusive occupancy of the marital residence comes to anend (see Levitt v Levitt, 97AD3d 543 [2012]; see generally Summer v Summer, 85 NY2d 1014[1995]).
The Supreme Court also erred in its calculation of the amount to which the plaintiffwas entitled for her equitable share of the appreciation of the defendant's conveniencestores. The parties stipulated that the value of the two convenience stores appreciated by$379,400 during the period from when the parties were married until commencement ofthe divorce action. Contrary to the court's conclusion, this entire amount representedmarital property subject to equitable distribution (see Zaretsky v Zaretsky, 66 AD3d 885 [2009]). While therecord supports the Supreme Court's determination that the plaintiff was only entitled to35% of this marital asset, it erred by further applying such percentage to only half of thestores' appreciated value. Accordingly, the plaintiff is entitled to 35% of $379,400, or$132,790 as her equitable share of the appreciated value of the defendant's conveniencestores.
The parties' remaining contentions are without merit.
Accordingly, we remit the matter to the Supreme Court, Suffolk County, for furtherproceedings, including a hearing, if warranted, to calculate the amount of retroactivemaintenance and child support (the latter being based upon the Supreme Court's newchild support determination) from the date of the plaintiff's first application formaintenance and child support. In making such calculations, the Supreme Court shalltake into account the actual amount, if any, of mortgage and carrying charges paid by thedefendant, and credit the defendant for any temporary maintenance and [*3]child support payments which he made during thependency of the action (see Kimv Schiller, 112 AD3d 671, 676-677 [2013]; Levitt v Levitt, 97 AD3d at545; Pascale v Pascale, 226 AD2d 439, 440 [1996]). Dillon, J.P., Leventhal,Sgroi and Hinds-Radix, JJ., concur.