Rudish, Commack, NY, appellant pro se.
Rudish, Huntington, NY, respondent pro se.
M. LEVENTHAL, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from stated portions of a judgment of
divorce of the Supreme Court, Suffolk County (John B.
Collins, J.), entered October 1, 2014. The judgment of
divorce, upon a decision of that court dated February 27,
2014, made after a nonjury trial, inter alia, awarded the
plaintiff child support, made an equitable distribution of
the parties' marital assets, and failed to award the
defendant a credit for the plaintiff's sale of a vehicle
alleged to be his separate property.
that the judgment is affirmed insofar as appealed from, with
parties were married in 1995, and have two children together.
In August 2010, the plaintiff commenced this action for a
divorce and ancillary relief. Thereafter, in February 2012,
the parties entered into a stipulation resolving the grounds
of divorce and the issue of custody of the children. After a
nonjury trial on the issues of child support and equitable
distribution, the Supreme Court imputed income to the
defendant in the sum of $65, 000 per year and awarded child
support to the plaintiff based on that sum. The court also
found that each party had removed "relatively
equal" amounts of money from their joint accounts, and
for purposes of equitable distribution directed that each
party would keep the sums they had removed. The court did not
make a distribution of a sailboat owned by the parties or the
contents of the marital home, and did not compensate the
defendant for a vehicle which had been purchased by him prior
to the marriage and sold by the plaintiff after the
commencement of the action. The defendant appeals from stated
portions of the judgment of divorce entered on the
Supreme Court's determination of the issue of child
support is supported by the record. In determining a
party's child support obligation, the court "need
not rely upon a party's own account of his or her
finances, but may impute income based upon, among other
things, the party's past income, demonstrated future
potential earnings, educational background, or money received
from friends and relatives" (Abizadeh v
Abizadeh, 137 A.D.3d 824, 825; see Repetti v
Repetti, 147 A.D.3d 1094; Horn v Horn, 145
A.D.3d 666, 668; Rosenberg v Rosenberg, 145 A.D.3d
1052, 1054; Matter of Funaro v Kudrick, 128 A.D.3d
695, 696; Baumgardner v Baumgardner, 98 A.D.3d 929,
930). Where a party's testimony regarding his or her
finances is not credible, the court is justified in finding a
true or potential income higher than that claimed (see
Castello v Castello, 144 A.D.3d 723, 725; Abizadeh v
Abizadeh, 137 A.D.3d at 825; Baumgardner v
Baumgardner, 98 A.D.3d at 930; Mosso v Mosso,
84 A.D.3d 757, 759; Khaimova v Mosheyev, 57 A.D.3d
737, 737-738). The court has considerable discretion in
determining whether income should be imputed to a party, and
the court's credibility determinations are afforded
deference on appeal (see Castello v Castello, 144
A.D.3d at 725; Matter of Funaro v Kudrick, 128
A.D.3d at 696; Siskind v Siskind, 89 A.D.3d 832,
834; Khaimova v Mosheyev, 57 A.D.3d at 737-738).
although the defendant testified that stress, depression, and
anxiety impeded his ability to work, he presented no medical
evidence to substantiate these claims. The defendant also
failed to meet his burden of establishing that he diligently
sought to obtain employment commensurate with his
qualifications and abilities (see DeSouza-Brown v
Brown, 71 A.D.3d 946, 947), and the evidence presented
at the trial demonstrated that he had received financial and
other assistance from family members and friends (see
Baumgardner v Baumgardner, 98 A.D.3d at 931).
Accordingly, the Supreme Court properly found that the
defendant's assertions that he was incapable of earning
income were conclusory and unsupported by the evidence, and
providently exercised its discretion in imputing income to
him in the sum of $65, 000 per year (see Repetti v
Repetti, 147 A.D.3d 1094; Horn v Horn, 145
A.D.3d at 668; Rosenberg v Rosenberg, 145 A.D.3d at
1054; Abizadeh v Abizadeh, 137 A.D.3d at 825;
Baumgardner v Baumgardner, 98 A.D.3d at 931;
DeSouza-Brown v Brown, 71 A.D.3d at 947).
Supreme Court's determination of the issue of equitable
distribution is also supported by the record. "A trial
court is vested with broad discretion in making an equitable
distribution of marital property, and unless it can be shown
that the court improvidently exercised that discretion, its
determination should not be disturbed" (Schwartz v
Schwartz, 67 A.D.3d 989, 990 [internal quotation marks
omitted]; see Repetti v Repetti, 147 A.D.3d 1094;
Maddaloni v Maddaloni, 142 A.D.3d 646, 651). "A
determination must be made as to the net value of each asset
before determining the distribution thereof"
(D'Amato v D'Amato, 96 A.D.2d 849, 850;
see Van Dood v Van Dood, 142 A.D.3d 661, 662).
Equitable distribution does not necessarily require equal
distribution (see Repetti v Repetti, 147 A.D.3d
1094; Halley-Boyce v Boyce, 108 A.D.3d 503, 504).
the Supreme Court's determination that funds removed by
each party from their joint bank and brokerage accounts were
relatively equal was supported by the evidence adduced during
the trial, and its determination that each party should keep
the sums withdrawn was not an improvident exercise of
discretion. In addition, the defendant failed to establish
his entitlement to equitable distribution of the parties'
sailboat and the contents of the marital home, as he failed
to offer any evidence as to the value of these items (see
Repetti v Repetti, 147 A.D.3d 1094; Keil v
Keil, 85 A.D.3d 1233, 1235; Daisernia v
Daisernia, 188 A.D.2d 944, 946).
Supreme Court properly declined to award the defendant a
credit for the vehicle purchased by him prior to the marriage
since he failed to establish its value (see McLoughlin v
McLoughlin, 63 A.D.3d 1017, 1019; Daisernia v
Daisernia, 188 A.D.2d at 946).
defendant's remaining contention is without merit.
LEVENTHAL, J.P., HALL, HINDS-RADIX and BRATHWAITE ...