| Samimi v Samimi |
| 2015 NY Slip Op 09419 [134 AD3d 1010] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Barbara Samimi, Respondent, v SohrabSamimi, Appellant. |
Nathan Soufeh, Mineola, NY, for appellant.
Steven D. Kommor, Melville, NY, for respondent.
Appeal from stated portions of a judgment of the Supreme Court, Nassau County(Margaret Reilly, J.), entered August 21, 2013. The judgment, inter alia, awarded theplaintiff monthly child support for the parties' three children in the sum of $2,378, title tothe marital residence, spousal maintenance in the sum of $20,000 annually for a period ofseven years, and attorneys' fees in the sum of $50,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"[I]n making any decision relative to equitable distribution, maintenance or childsupport, the court must set forth the factors that it considered and the reasons for itsdecision, 'and such may not be waived by either party or counsel' " (Otto vOtto, 150 AD2d 57, 61 [1989], quoting Domestic Relations Law § 236[B] [5] [g]; [6] [b]). "A trial court is vested with broad discretion in making an equitabledistribution of marital property, and unless it can be shown that the court improvidentlyexercised that discretion, its determination should not be disturbed" (Schwartz v Schwartz, 67 AD3d989, 990 [2009] [internal quotation marks and citations omitted]). "Equitabledistribution does not necessarily mean equal distribution" (Evans v Evans, 57 AD3d718, 719 [2008]). Here, in fashioning an equitable distribution award, the SupremeCourt listed the statutory factors that shaped its determination and sufficiently detailedthe rationale behind its award (see Domestic Relations Law § 236[B] [5] [d]; Evans v Evans,57 AD3d 718 [2008]; seegenerally Ruzicka v Ruzicka, 31 AD3d 862 [2006]). While the Supreme Courtmisstated that the parties' 2008 tax return set forth that the defendant earned $80,000 andthat the plaintiff had paid the health insurance premiums, the defendant ultimately failedto demonstrate that the court's distributive award was inequitable or that a different resultwas warranted.
As part of its equitable distribution determination, the Supreme Court, withoutelaborating on its specific reasoning, awarded the plaintiff title to the marital residenceand awarded the defendant ownership of his computer consulting business. This Court,however, can make its own findings where the reasons for the Supreme Court'sdetermination appear on the face of the record (see Kobylack v Kobylack, 62NY2d 399, 403 [1984]; Majauskas v Majauskas, 61 NY2d 481, 493-494 [1984]).The record established that the defendant failed to cooperate with the valuation of thecomputer consulting business and failed to provide financial disclosure to the plaintiff asrequired. Furthermore, the gross earnings of the business for the years 2008 and 2009totaled $142,791 and[*2]$172,345, respectively. The taxreturns for 2008 and 2009 show that the business also took large tax deductions. Thetestimony of the parties also established that the parties and their children were sustainedsolely by the earnings of the business, including, but not limited to, the payment of themortgage, taxes, utilities, the parties' automobiles, the children's extracurricular activities,and family vacations. Moreover, the record established that the defendant failed tocomply with court orders and mandated discovery. The defendant's testimony andevidence were also shown on several occasions to be less than credible. The recordestablished that the plaintiff continues to reside in the marital residence with the parties'three children. In addition, the record showed that the marital residence, while valued at$615,000, was encumbered by a mortgage of $256,250 and property taxes totaled$14,000. Upon consideration of all of the relevant factors (see DomesticRelations Law § 236 [B] [5] [d]), the Supreme Court did not improvidentlyexercise its discretion in awarding the marital residence to the plaintiff and the computerconsulting business to the defendant (see generally Bernholc v Bornstein, 72 AD3d 625 [2010];Farkas v Farkas, 251 AD2d 4 [1998], affd 11 NY3d 300 [2008];Maharam v Maharam, 245 AD2d 94 [1997]).
"A parent's child support obligation is not necessarily determined by his or hercurrent financial condition, but rather by his or her ability to provide support" (Matter of Solis v Marmolejos,50 AD3d 691, 692 [2008] [internal quotation marks and citations omitted]). Assuch, "[t]he court is not bound by a party's actual reported income in applying the basicchild support obligation, and instead could use that party's actual earning capacity orimpute an amount onto the gross income reported by the party" (id.). Here, theSupreme Court was permitted to impute income to the defendant in calculating his childsupport obligation for the parties' three children, since his account of his finances was notcredible (see Matter of Barnett vRuotolo, 49 AD3d 640 [2008]). The defendant's testimony and financialdocumentation indicated incongruously that his annual income was only approximatelyone-third of his annual expenses, and no evidence was submitted to show that theseexpenses had not been paid in a timely manner (see id.). In light of the testimonyand evidence proffered at trial, the Supreme Court did not improvidently exercise itsdiscretion in imputing income of $130,000 to the defendant in calculating his childsupport obligation.
"The amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court, and every case must be determined based on its own uniquefacts" (Grumet v Grumet,37 AD3d 534, 535 [2007]). "Although the trial court is required to consider theparties' preseparation standard of living in determining the appropriate amount andduration of maintenance, the court must also consider the reasonable needs of therecipient spouse and the preseparation standard of living in the context of the otherfactors" (id.; see Domestic Relations Law § 236 [B] [6] [a]).Here, the Supreme Court providently exercised its discretion in fixing the amount ofmaintenance awarded to the plaintiff. The Supreme Court further providently limited theduration of the award to a reasonable time for the plaintiff to complete the schooling andtraining necessary to become gainfully employed, as she has been out of the work forcefor some time (cf. Palestra v Palestra, 300 AD2d 288 [2002]).
"Pursuant to Domestic Relations Law § 237 (a), a court in a divorceaction may award counsel fees to a spouse to enable that spouse to carry on or defend theaction or proceeding as, in the court's discretion, justice requires, having regard to thecircumstances of the case and the respective parties" (Aloi v Simoni, 82 AD3d 683, 686 [2011] [internalquotation marks and citations omitted]). "In exercising its discretionary power to awardan attorney's fee, the court may consider, among other things, whether either party hasengaged in conduct or taken positions resulting in a delay of the proceedings orunnecessary litigation" (id. at 686-687 [internal quotation marks and citationomitted]). Here, the record established that the defendant's behavior and refusal tocomply with discovery and court orders compelled the plaintiff to engage in extensivemotion practice that significantly increased the cost of the litigation. Accordingly, theSupreme Court providently exercised its discretion in awarding the plaintiff $50,000 inattorneys' fees.
The defendant's remaining contentions are either unpreserved for appellate review orwithout merit. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.
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Motion by the respondent on an appeal from a judgment of the Supreme Court,Suffolk County, entered August 21, 2013, inter alia, to strike the appellant's brief orstated portions of the brief on the ground that they refer to matter dehors the record orcontain factual misrepresentations. By decision and order on motion of this Court datedNovember 24, 2014, that branch of the motion which is to strike the appellant's brief orstated portions of the brief was held in abeyance and referred to the panel of Justiceshearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to strike stated portions of theappellant's brief on the ground that they refer to matter dehors the record is granted to theextent that those portions of the appellant's brief referring to matter dehors the recordwhich are listed as items (A), (C), (D), (G), and (J) in paragraph 9 of the affirmation insupport of the motion by Steven D. Kommor, dated September 3, 2014, are deemedstricken and have not been considered on appeal; and it is further,
Ordered that the motion is otherwise denied. Balkin, J.P., Austin, Sgroi and LaSalle,JJ., concur.