SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 10, 1968
ESTELLE BRODERSON, APPELLANT,
EDWIN BRODERSON, RESPONDENT
Christ, Acting P. J., Brennan, Rabin and Hopkins, JJ., concur.
In our opinion, upon the merits of the appeal, the trial court properly determined that the obligation of the respondent-former husband, under article 8 of the separation agreement, was to pay a minimum of $85 a week, as an advance against one half of his net income in any one taxable year, and that this obligation was subject to change for overpayment or underpayment, the correction to be reflected by addition or decrease in the $85 weekly payments to be made in the ensuing taxable year, as stipulated. However, respondent was not entitled to deduct, as he did, the amount of his 1965 support payments to the wife from his gross receipts in order to arrive at his 1965 net income (Silver v. Silver, 12 A.D.2d 325), but was entitled to deduct from his gross receipts his necessary expenses and income taxes, including his unreimbursed traveling expenses (27A C. J. S., Divorce, § 233 , par. c, p. 1051). By reason of the foregoing, we hold that the proof in this case showed that respondent had improperly deducted from his 1965 gross income the amount of $4,420 for appellant's support, as if he had paid to her alimony for the full 52 weeks at $85 a week, when in fact he had begun making such payments on April 7, 1965 and could, therefore, only have paid for a period of no more than about 40 weeks, and when, under the law, he was not entitled to make any such deduction at all. Under the circumstances, the credits and debits of the parties for the year 1965 have to be re-evaluated, since the trial court allowed the $4,420 deductions to stand in the reckoning of respondent's net income for that year, and upon the recasting of the figures a finding should be made as to whether respondent was entitled to begin making payments of less than $85 a week, commencing in April, 1966, as he did, and to what extent, if any. For that purpose, this matter should be remitted to the Family Court for a further hearing and a determination of the arithmetical status of the parties, as of the date of appellant's petition.
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