Wisselman, Harounian & Associates, P.C., Great Neck, NY
(Randall K. Malone of counsel), for appellant.
R. Finkston, Great Neck, NY, for respondent.
C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Nassau County (Norman
Janowitz, J.), entered November 19, 2015. The judgment,
insofar as appealed from, upon a decision of that court dated
February 23, 2012, awarded maintenance to the plaintiff in
the sum of $1, 500 per month for a period of four years and
directed the defendant to pay the sum of $248.41 per week in
child support to the plaintiff.
that the judgment is affirmed insofar as appealed from, with
parties were married in 1991, and have two children. The
plaintiff commenced this action for a divorce an ancillary
relief on July 10, 2009, and, on May 3, 2011, the parties
executed a custody and visitation stipulation in which they
agreed to joint legal custody of the children, whereby the
plaintiff would have physical custody of the parties'
daughter and the defendant would have physical custody of
their son. Thereafter, on May 19, 2011, the parties executed
an equitable distribution stipulation which provided that the
plaintiff would eventually receive $82, 500 in cash in
exchange for her agreement to waive her interest in the
parties' two marital homes, boat, and three time-shares.
The defendant waived his interest in the plaintiff's $20,
000 bank account and her pension.
to a stipulation in which the parties agreed to submit, on
papers, the remaining issues of child support and maintenance
for final determination by the Supreme Court, the court
issued a decision dated February 23, 2012, addressing those
issues based on an affidavit, affirmation, and financial
exhibits submitted by the defendant. Thereafter, the
defendant moved to "renew/reargue the February 23rd,
2012 Decision, " submitting an affidavit and an
affirmation in support of the motion. By order dated July 11,
2012, the court denied the defendant's motion. In the
judgment appealed from, entered November 19, 2015, the court,
upon the decision, inter alia, awarded maintenance to the
plaintiff in the sum of $1, 500 per month for a period of
four years, and directed the defendant to pay $248.41 per
week in child support to the plaintiff.
defendant's contention that the Supreme Court erred by
imputing an income to him of $130, 000 when it calculated the
maintenance and child support awards is without merit. "
[A] parent's child support obligation is not necessarily
determined by his or her current financial condition, but
rather by his or her ability to provide support'"
(Matter of Solis v Marmolejos, 50 A.D.3d 691, 692,
quoting Matter of Davis v Davis, 13 A.D.3d 623,
624). "The court is not bound by a party's actual
reported income in applying the basic child support
obligation, and instead could use that party's actual
earning capacity or impute an amount onto the gross income
reported by the party" (Matter of Solis v
Marmolejos, 50 A.D.3d at 692). Here, the record
demonstrated that the plaintiff is a high school graduate who
has worked part-time as a cashier since 1998, earning $10,
000 to $15, 000 annually. The defendant is a college graduate
who has had many years of experience working as an estimator
for various construction companies. From 2005 until 2009, the
defendant's annual salary was approximately $130, 000.
Although the defendant was unemployed for part of 2010, he
earned approximately $47, 000, which was supplemented by
unemployment compensation and withdrawals from retirement
accounts, raising his total income for 2010 to $186, 582. The
defendant worked for most of 2011 and had a yearly income of
$130, 000 from a combination of earnings and unemployment
compensation. The defendant's contention that the amount
of income imputed to him should be limited to his earnings
from employment as reported on his 2010 tax return is without
merit (see Domestic Relations Law §
240[1-b][b]). We conclude that the Supreme Court was
within its discretion in considering the defendant's
employment history and earning capacity and properly imputed
an income of $130, 000 to the defendant in determining an
award of child support (see Fruchter v Fruchter, 29
A.D.3d 942, 943; Bittner v Bittner, 296 A.D.2d 516,
the circumstances of this case, the Supreme Court also
providently exercised its discretion in awarding spousal
maintenance to the plaintiff in the sum of $1, 500 per month
for a period of 4 years. The court limited the duration of
the award to a reasonable time to allow the plaintiff to
obtain any necessary schooling and training to enable her to
be self-supporting and regain self-sufficiency (see
O'Brien v O'Brien, 66 N.Y.2d 576, 585; Bains
v Bains, 308 A.D.2d 557, 559). The defendant has failed
to establish that the amount or duration of the spousal
maintenance award was excessive and, as such, the court's
determination will not be disturbed.
defendant's contentions regarding his motion denominated
as one to "renew/reargue the February 23rd, 2012