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Kimberly C. v. Christopher C.

Supreme Court of New York, Third Department

November 22, 2017

KIMBERLY C., Respondent,
v.
CHRISTOPHER C., Appellant.

          Calendar Date: October 17, 2017

          Mack & Associates, PLLC, Albany (Barrett D. Mack of counsel), for appellant.

          Joch & Kirby, Ithaca (Susan C. Kirby of counsel), for respondent.

          Susan B. McNeil, Ithaca, attorney for the children.

          Before: Garry, J.P., Devine, Mulvey, Aarons and Rumsey, JJ.

          MEMORANDUM AND ORDER

          Garry, J.P.

         Appeal from a judgment of the Supreme Court (Cassidy, J.), entered April 1, 2016 in Tompkins County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

         Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1990 and have two children (born in 1999 and 2002). In March 2013, both parties filed family offense petitions and Family Court issued a temporary order of protection in favor of the wife and the children. In May 2013, the wife commenced this action for divorce. After the husband joined issue, Supreme Court (Ames, J.) issued a pendente lite order that

         continued the temporary order of protection, granted temporary sole custody of the children to the wife, directed the husband to pay temporary child support, and transferred the combined family offense proceedings and divorce action to the integrated domestic violence part of the court.

         In December 2015, after a trial, Supreme Court (Rowley, J.) issued a decision that, as pertinent here, sustained the wife's family offense petition, continued the order of protection, awarded sole custody of the children to the wife with supervised parenting time for the husband, distributed the parties' assets - including the husband's interest in his law firm and the wife's interest in her landscape architecture firm - ordered the husband to pay child support and directed him to pay counsel fees to the wife. Supreme Court (Cassidy, J.) thereafter issued a judgment of divorce incorporating the terms of the decision. The husband appeals.

         We reject the husband's contention that the child support award constituted impermissible double counting on the ground that his partnership interest in his law firm was equitably distributed as marital property, while the child support award was based on his income from the same firm. As the husband argues, it is well-established that income from an intangible asset, such as a professional license, that has been equitably distributed as marital property may not also form the basis of a maintenance award (see Grunfeld v Grunfeld, 94 N.Y.2d 696, 704-706 [2000]; Gifford v Gifford, 132 A.D.3d 1123, 1124-1125 [2015]; see also Keane v Keane, 8 N.Y.3d 115, 121-122 [2006]) [1]. However, it is also well established that the rule against double counting does not apply to the calculation of child support, as the Child Support Standards Act (see Domestic Relations Law § 240 [1-b] [hereinafter CSSA]) does not authorize the deduction of a distributive award from a parent's income for this purpose (see Holterman v Holterman, 3 N.Y.3d 1, 13 [2004]). Maintenance was not awarded here, and the husband's arguments based upon the 2015 amendments to Domestic Relations Law § 236 (B) (6) are not germane; his challenge to the child support award is governed by the CSSA, which has not been similarly amended and, as before, "simply does not authorize a court to deduct a distributive award from the titled spouse's income" (Holterman v Holterman, 3 N.Y.3d at 13).

         Next, the husband contends that his child support obligation should not have been based upon his income in 2013 and 2014 because his personal income tax returns for those years were not in evidence. This contention is unpreserved, as the husband made no objection or argument on this ground at trial (see Severing v Severing, 97 A.D.3d 956, 957 [2012]; Hollis v Hollis, 188 A.D.2d 960, 961 n 2 [1992]). As for the husband's related contention that his trial counsel was ineffective for failing to ensure that this tax information was admitted, the record reveals that, contrary to his present contention, the husband's 2013 individual tax return was, in fact, admitted into evidence during the trial [2]. His law firm's 2014 tax return was admitted into evidence, and the wife asserts that he did not supply his personal tax return for 2014 despite her repeated requests in the course of discovery. The wife therefore relied upon the husband's trial testimony, the law firm tax return and the husband's 2014 W-2 form - which was apparently turned over by the husband's counsel at the close of trial - as the basis for the 2014 income calculations in her closing submission [3]. In the circumstances presented, the husband's claim that his trial counsel should have objected to the absence of his 2013 and 2014 tax information has no merit, nor does the record, viewed as a whole, otherwise demonstrate any failure to provide meaningful representation (see generally Matter of Hissam v Mackin, 41 A.D.3d 955, 957 [2007], lv denied 9 N.Y.3d 809');">9 N.Y.3d 809 [2007]).

         Contrary to the husband's argument, Supreme Court's (Rowley, J.) recitation of the factual findings upon which the child support award was based was sufficient to permit intelligent appellate consideration. Although terse, the decision plainly demonstrates that the court correctly applied the three-step analysis required by the CSSA, in which a court must first determine the combined parental income, then multiply that amount by the applicable statutory percentage and allocate the result between the parties based upon their pro rata shares of the combined income, and finally, determine the amount of additional support to be paid on any income greater than the statutory cap (see Domestic Relations Law § 240 [1-b] [c]; Holterman v Holterman, 3 N.Y.3d at 10-11; Armstrong v Armstrong, 72 A.D.3d 1409, 1412 [2010]). The court set forth the income it had determined for each party for each of the pertinent years, the wife's pro rata share of the parties' combined income - and thus, by implication, the husband's - and its choice to apply the statutory percentage to the full amount of the husband's income over the statutory cap, and then determined the amounts of the husband's retroactive 2013 child support obligation and his future obligation. Although the husband now argues that the court should have set forth more factual detail as to the underlying calculations - and we agree that doing so would have been the better practice - he does not contend that there were any mathematical errors or omissions. We perceive no reason for remittal on this basis.

         Supreme Court did not err in applying the percentage specified in the CSSA to the full amount of income over the statutory cap. Upon concluding that the parties' combined income was significantly greater than the applicable limits for 2013 and 2014, the court was required, in its discretion, either to apply the statutory child support percentage - here, 25% for two children - to the full amount, or to order the payment of some other amount if it determined after examining the requisite factors that the statutory percentage would be unjust or inappropriate (see Domestic Relations Law § 240 [1-b] [b] [3]; [f]; Matter of Cassano v Cassano, 85 N.Y.2d 649, 653 [1995]). "In doing so, the trial court must set forth a record articulation for deviating or not deviating from the statutory guideline and relate that articulation to the statutory factors" (Moschetti v Moschetti, 277 A.D.2d 838, 840 [2000] [citations omitted]; see Matter of Cassano v Cassano, 85 N.Y.2d at 655; Petersen v Petersen, 125 A.D.3d 1234, 1235 [2015]). Here, the court stated that it was adopting interim findings made in the pendente lite order, to the effect that no deviation from the statutory cap was appropriate because the children had become accustomed to the reasonable luxuries provided by the parties' significant income, including private schools, travel to ...


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