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Fein v. Fein

Supreme Court of New York, Second Department

January 15, 2014

Mitchell Fein, respondent,
v.
Julie Fein, appellant. Index No. 9565/09

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Evan Wiederkehr of counsel), for appellant.

Jeffrey S. Schecter & Associates, P.C., Garden City, N.Y. (Bryce R. Levine of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Westchester County (Tolbert, J.), dated December 22, 2011, which, upon a decision of the same court dated November 10, 2011, made after a nonjury trial, inter alia, directed the plaintiff to pay child support in the sum of only $450 per week and maintenance in the sum of only $346.15 per week for three years.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The parties were married in 1993 and have three children, born in 1994, 1996, and 1998, respectively. The plaintiff worked as a trader in the financial industry before losing his job in late 2009, and the defendant stayed at home with the children. The plaintiff commenced this action for a divorce and ancillary relief in March 2009, and the matter proceeded to a nonjury trial in June 2011.

Contrary to the defendant's contentions, the Supreme Court did not improvidently exercise its discretion in imputing to the plaintiff an annual income of only $125, 000 for the purpose of calculating child support, given the plaintiff's current employment situation, his future earning capacity, and the evidence presented relating to additional streams of income (see Haagen-Islami v Islami, 96 A.D.3d 1004). In addition, the court properly imputed an annual income of $65, 000 to the defendant (see Domestic Relations Law § 240[1-b][b][5][iv][D]).

Contrary to the defendant's further contention, the Supreme Court's determination to calculate the parties' child support obligations based on the $130, 000 statutory cap is adequately supported by the record, and was not an improvident exercise of discretion (see generally Matter of Cassano v. Cassano, 85 N.Y.2d 649; Iarocci v Iarocci, 98 A.D.3d 999).

We also reject the defendant's contention that the amount and duration of the maintenance award was inadequate. "[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts" (Wortman v. Wortman, 11 A.D.3d 604, 606). Here, under the totality of the circumstances, including the fact that the defendant is college educated and capable of seeking employment, the Supreme Court's award of maintenance in the sum of $346.15 per week for three years is adequate in amount and duration (see Groesbeck v Groesbeck, 51 A.D.3d 722).

The defendant's remaining contentions are without merit.

MASTRO, J.P., LEVENTHAL, AUSTIN and SGROI, JJ., concur.


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