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Evans v. Evans

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 16, 2008

MELVIN EVANS, APPELLANT,
v.
WINDELL EVANS, AS ADMINISTRATOR OF THE ESTATE OF PATTY EVANS, DECEASED, RESPONDENT.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Prus, J.), entered July 19, 2005, which, after a non-jury trial, inter alia, directed him to pay the defendant the sum of $1,000 in monthly child support retroactive to the service of the pleadings, awarded him only 15% of the value of the marital residence, and awarded him only 10% of the defendant's pension as accrued prior to 1989.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, WILLIAM E. McCARTHY and THOMAS A. DICKERSON, JJ.

(Index No. 15766/03)

DECISION & ORDER

ORDERED that the judgment is modified, on the facts, by deleting from the sixth decretal paragraph thereof the year "1989" and substituting therefor the year "1998"; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

Since the plaintiff presented insufficient and incredible evidence to establish his income, the Supreme Court properly awarded child support based on the needs of the child (see Domestic Relations Law § 240[1-b][k]; Amsellem v Amsellem, 15 AD3d 510, 510-511). Additionally, the Supreme Court properly directed that this award was to be retroactive to the date of the initial pleadings (see Amsellem v Amsellem, 15 AD3d at 511; see also Nolfo v Nolfo, 188 AD2d 451, 453).

The trial court has great flexibility in fashioning an equitable distribution of marital assets (see Smulczeski v Smulczeski, 18 AD3d 734, 735; Niland v Niland, 291 AD2d 876, 877). Equitable distribution does not necessarily mean equal distribution (see Groesbeck v Groesbeck, 51 AD3d 722, 723; Falgoust v Falgoust, 15 AD3d 612, 614; Rizzuto v Rizzuto, 250 AD2d 829, 830). In light of the evidence that the plaintiff contributed minimally to the marriage, the court's determination with regard to the equitable distribution of the marital property was a provident exercise of discretion (see Arrigo v Arrigo, 38 AD3d 807, 807-808; Chalif v Chalif, 298 AD2d 348; Greene v Greene, 250 AD2d 572; cf. Simmons v Simmons, 301 AD2d 515).

However, modification of the order is required in light of the concession in the defendant's brief that the date of the cutoff of the award of a share of the defendant's pension benefits to the plaintiff should be December 31, 1998, not December 31, 1989.

The plaintiff's remaining contentions are without merit.

SKELOS, J.P., SANTUCCI, McCARTHY and DICKERSON, JJ., concur.

20081216

© 1992-2008 VersusLaw Inc.



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