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Plaintiff Appeals Divorce Judgement Regarding Her Share of Business

A New York Family Lawyer said this is an action for divorce and ancillary relief wherein the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County entered on 19 August 2008. After a nonjury trial, plaintiff was directed to pay a monthly child support in the amount of $4,833.33, awarded him only one half of the defendant’s one-half-interest in the marital residence which she jointly owned with her mother, and only one half of the sum of $440,000, which the defendant transferred to the custodial accounts of the parties’ children without his permission, awarded the defendant 25% of the appreciated value of his two businesses, declined to award him a percentage of the defendant’s increased earnings, and declined to award him a 50% credit for unaccounted-for funds in the accounts held by the defendant jointly with her mother at Chase Bank, deposited from 14 October 1997, to 12 October 2001.

The court orders that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the fifth decretal paragraph thereof and by adding to the fifteenth decretal paragraph thereof, after the words “Memorandum Decision After Trial,” the phrase, “except that (i) the net value of the marital home which is available for equitable distribution is $549,876, and the husband is credited with the sum of $274,938, and (ii) the net value available for equitable distribution with respect to the children’s custodial accounts is $605,848, and the husband is credited with the sum of $302,924.

A New York Custody Lawyer said as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings.

Further, the court orders that pending a new determination of the issue of child support, the plaintiff shall continue to pay monthly child support in the sum of $4,833.33, as set forth in the fifth decretal paragraph of the judgment.

A Staten Island Family Lawyer said that on 21 April 1990, at the time of the parties’ marriage, the plaintiff was a licensed veterinarian and that plaintiff specialized in the treatment of horses. The defendant, on the other hand, was a licensed anesthesiologist at the Long Island Jewish Medical Center. Throughout their marriage, the defendant worked full-time and the plaintiff operated his private veterinary practice and a related business which boarded horses and held polo matches on a five-acre property in Huntington Station. It should be noted that the plaintiff purchased this property before the marriage. At the beginning of their marriage, the parties agreed that they would save the defendant’s income for a down payment on a home, and rely on the plaintiff’s income to pay their expenses through one or both of his businesses.

A Staten Island Custody Lawyer said that in 1993 the defendant and her mother purchased a home in Laurel Hollow in which the parties lived for the duration of the marriage. The defendant and her mother held title as joint tenants with the right of survivorship, for the ostensible purpose of shielding the home from the husband’s potential creditors. The defendant and her mother assumed a $300,000 mortgage to purchase the home, which the defendant paid throughout the marriage, and satisfied during the pendency of this action with a final payment of $30,248.
On 12 October 2001, at the time the plaintiff commenced this action for divorce, the parties had a son who was approximately 4 1/2 years old, and twins who were approximately 18 months old. After the parties resolved the grounds for divorce and the issues of custody and visitation, the remaining issues were tried before the court in an 11–day trial, which commenced on 5 February 2007.

On 3 August 2008, the parties were divorced by judgment, which, inter alia, directed the plaintiff to pay monthly child support in the amount of $4,833.33; awarded the plaintiff one half of the defendant’s one half-interest in the marital residence after crediting the defendant with certain sums and one half of $440,000, which the defendant transferred to the children’s custodial accounts without the plaintiff’s permission, awarded the defendant 25% of the appreciated value of the plaintiff’s veterinary practice and the related business, declined to award the plaintiff a percentage of the defendant’s increased earnings, and declined to award the plaintiff a 50% credit for unaccounted-for funds in the joint accounts the defendant held with her mother at Chase Bank, deposited from 14 October 1997, to 12 October 2001.

For purposes of its child support award, the Supreme Court imputed income to the plaintiff in the sum of $259,100. The plaintiff challenges the allegation. The court finds his challenge without merit. In determining a party’s child support obligation, a court need not rely upon the party’s account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential as was held in DeVries v DeVries and Fruchter v. Fruchter. The Supreme Court properly imputed an annual income to the plaintiff based, inter alia, on undisputed evidence that his businesses paid for virtually all of his personal expenses, so that his actual earnings greatly exceeded the amount of income which he reported on his tax returns as was held in the analogous cases of Spreitzer v. Spreitzer, Fruchter v. Fruchter, Nebons v. Nebons, and Ivani v Ivani.

In determining the amount of child support, however, the court finds that the Supreme Court failed to set forth the parties’ pro rata shares of child support, and to adequately explain the application of the precisely articulated, three-step method for determining child support pursuant to the Child Support Standards Act -Domestic Relations Law § 240[1–b] and based on the rulings of Matter of Cassano v Cassano and McLoughlin.

Accordingly, the court remits the matter to the Supreme Court, Nassau County, for a recalculation of the plaintiff’s child support obligation in pursuant to the case of McLoughlin v Mc Loughlin.

The court finds that the Supreme Court properly determined that the plaintiff was entitled to one half of the defendant’s half-interest in the marital residence, which was marital property and subject to equitable distribution based on Domestic Relations Law § 236[B][1][c] and in accordance with Angot v Angot. The Supreme Court, however, erred in deducting the amount of the outstanding mortgage from the stipulated gross value of the home to determine the available amount for equitable distribution since the mortgage was already satisfied at the time of distribution, and the Supreme Court additionally credited the defendant for one half the amount of the $30,248 payment.

The court also observed that the Supreme Court also erred in determining the amount of marital funds which was subject to equitable distribution with respect to transfers the defendant made from her personal bank account into the children’s custodial accounts without the plaintiff’s permission. The evidence conclusively established that the defendant transferred the sum of $605,848 in marital funds.

The court observes that the plaintiff’s remaining contentions are without merit.

Nassau County Family Lawyers, Nassau County Divorce Lawyers and Nassau County Child Support Lawyers at Stephen Bilkis & Associates are experts when it comes to the cases like the one mentioned above. If you or your loved ones are facing the same kind of problems, please feel free to call our number or visit our office for free legal advice. A team of diligent lawyers will give their invaluable effort and support so you can win your case. Being protectors of children, mothers and fathers, the family is our primary concern and we will do our best to protect your cause in your time of utmost need.

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