Arthur v. Arthur

MULVEY, J.

Tully Rinckey, PLLC, Albany (Michael L. Boyle of counsel), for appellant.

Pro Bono Appeals Program, Albany (Cynthia Feathers of counsel), for respondent.

Before: McCARTHY, J.P. GARRY, LYNCH, DEVINE and MULVEY, JJ.

MULVEY, J.Appeal from a judgment of the Supreme Court (O'Connor, J.), entered March 14, 2016 in Albany County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 2005 and have two children (born in 2006 and 2008). This action for divorce was commenced in June 2013. The parties stipulated to the grounds for divorce and a nonjury trial was conducted over the course of eight days in August 2014, March 2015 and April 2015 to decide the issues of equitable distribution, spousal maintenance, child support and exclusive occupancy of the marital home. Supreme Court granted the divorce, directed a distributive award to the wife, ordered the husband to pay spousal maintenance for two years, awarded child support to the wife, awarded exclusive occupancy of the marital property to the wife until June 30, 2016, and awarded counsel fees to the wife. The husband appeals.

Supreme Court awarded the wife the sum of $25,000 as a distributive award on the basis of the parties' testimony describing the extent and cost of repairs made to two homes acquired by the husband prior to the marriage. The husband challenges the award contending that it was not supported by competent proof. Supreme Court's distributive award "will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors" (Robinson v. Robinson, 133 A.D.3d 1185, 1187, 21 N.Y.S.3d 392 [2015] [internal quotation marks and citation omitted]; see Kelly v. Kelly, 140 A.D.3d 1436, 1436, 34 N.Y.S.3d 260 [2016] ).

As the nontitled spouse, the wife bore the burden of proof regarding the value of her contributions (see Robinson v. Robinson, 133 A.D.3d at 1187, 21 N.Y.S.3d 392 ; Albanese v. Albanese, 69 A.D.3d 1005, 1006, 892 N.Y.S.2d 631 [2010] ). Supreme Court credited the wife's testimony that the total cost of repairs was approximately $50,000 and that marital funds from a joint account were used (see Ceravolo v. DeSantis, 125 A.D.3d 113, 118–119, 1 N.Y.S.3d 468 [2015] ; Macaluso v. Macaluso, 124 A.D.3d 959, 960, 1 N.Y.S.3d 464 [2015] ). The wife's description of the repairs and estimation of the amount expended were not challenged on cross-examination, and the absence of documentary support for the wife's testimony does not invalidate the award, since it was within the province of the court to determine the weight accorded her testimony (see Spenello v. Spenello, 274 A.D.2d 822, 824, 710 N.Y.S.2d 478 [2000] ). Although the husband testified that total expenditures came to only $10,000, and that the source of those funds was from his separate property, the court explicitly found the husband's testimony "generally not credible." Given the court's "superior opportunity to assess the credibility of the witnesses, we defer to its determinations" (Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] ). Although neither party offered any proof of any appreciation of either property from the date of the marriage to the date of commencement, Supreme Court did not abuse its discretion in finding that the use of marital funds for improvement of the husband's separate property, combined with both direct and indirect contributions from both parties, constituted a proper basis for the distributive award (see Robinson v. Robinson, 133 A.D.3d at 1187–1188, 21 N.Y.S.3d 392 ). Further, the court discussed the factors that it considered when determining the distributive award, including the disparity in the parties' separate property and their respective income potentials. Based on the record before us, we find that Supreme Court did not abuse its discretion in ordering the modest distributive award.

In determining the amount of child support and spousal maintenance, Supreme Court imputed an annual income to the husband in the amount of $109,512. The husband argues that this was an abuse of discretion since it was based on his prior employment and distributions from some family trusts and that he is now unemployed. "Income may be imputed based upon a prior employment experience, as well as such [person's] future earning capacity in light of that party's educational background" (Moffre v. Moffre, 29 A.D.3d 1149, 1150, 815 N.Y.S.2d 315 [2006] [internal quotation marks and citations omitted]; see Matter of D'Andrea v. Prevost, 128 A.D.3d 1166, 1167, 8 N.Y.S.3d 718 [2015] ). "A trial court has broad discretion to impute income when determining the amount of child support and maintenance and is not bound by the parties' representations of their finances" (Pfister v. Pfister, 146 A.D.3d 1135, 1136, 47 N.Y.S.3d 140 [2017] [citations omitted] ). Further, " ‘a parent's child support obligation is determined by his or her ability to provide support, rather than the parent's current financial situation’ " (Matter of D'Andrea v. Prevost, 128 A.D.3d at 1167, 8 N.Y.S.3d 718, quoting Matter of Rubley v. Longworth, 35 A.D.3d 1129, 1130, 825 N.Y.S.2d 839 [2006], lv. denied 8 N.Y.3d 811, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007] ). At the time of trial, the husband was unemployed, but was seeking certification as a public finance officer. In imputing income to the husband, the court properly considered his 40–year employment history, his Master's degree in finance, his recent salaries in the public sector, as well as his quarterly income from several family trusts. The court articulated the basis for its finding and we find that the evidence in the record supports the court's calculation (see Matter of Curley v. Klausen, 110 A.D.3d 1156, 1159, 972 N.Y.S.2d 743 [2013] ).

The husband also challenges the calculation of his child support obligation, arguing that the parties' August 2014 agreement to share physical custody equally constitutes a factor requiring deviation from the Child Support Standards Act (see Domestic Relations Law § 240[1–b][f] [hereinafter CSSA] ). We note that Supreme Court's decision does not indicate whether the shared custody arrangement was considered as a specific factor, yet the court expressly found that the amount calculated was appropriate. In determining the husband's support obligation, the court properly applied the three-step method in calculating his proportional share of the basic child support obligation (see Bast v. Rossoff, 91 N.Y.2d 723, 726–727, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998] ; compare factors in utilizing the combined parental income in excess of the statutory cap (see Domestic Relations Law § 240[1–b][c], [f] ). Specific factors noted by the court included the children's entitlement to continue the standard of living they enjoyed prior to the parties' separation, their needs that must be addressed and the husband's resources that go beyond the income he attempted to have attributed to him. "The CSSA contains a rebuttable presumption that application of the guidelines will yield the correct amount of child support, thereby placing the burden on the party contesting the application of the statutory percentage to establish that the pro rata share of support is unjust or inappropriate" (Matter of Ryan v. Ryan, 110 A.D.3d 1176, 1180, 973 N.Y.S.2d 377 [2013] [citations omitted] ). In exercising our independent review power, we find a lack of evidence in the record to support the husband's claim that shared parenting justifies a reduction of his child support obligation or that his proportional share of support "is unjust or inappropriate based on the application of the statutory factors" (Matter of Mitchell v. Mitchell, 134 A.D.3d 1213, 1215, 21 N.Y.S.3d 438 [2015] ).