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Gafyce v Gafyce


2017 NY Slip Op 01537

March 1, 2017


This is an appeal filed by the defendant, taking issue with certain portions of a judgement for divorce that was filed on June 23, 2014 in Supreme Court, Orange County. The court granted the plaintiff 100% of the marital property, located in Chester & Pond Eddy, and 25% of the property located in Port Jervis. The plaintiff was also granted $1,000 per month spousal maintenance (also known as spousal support) and $43,800 in back child support. The defendant was also ordered to pay $5,000 for contempt. Additionally the defendant was ordered to pay $25,000 in legal fees.

The court affirmed the judgment.

The particulars of spousal maintenance are to be decided by the court. Each case is decided on an individual basis, depending on the facts of the case (Carr-Harris v Carr-Harris 98 AD3d 548). In this case, the court feels that the Supreme Court properly calculated the duration and amount (Chaudry v Chaudry 95 AD3d 1058).

While the defendant disagrees, the Supreme Court hasn’t erred in imputing to the defendant in the amount of $85,000, which was used to calculate the amount of child support to be paid.

When figuring child support, the court doesn’t need to strictly rely on the party’s bank account. The court can impute income to a party based on past income, earning potential, or even goods, services and money given from family members (Family Court Act 413 [1][b][5][iv][D]; Genender v Genender 51 AD3d 669). In this instance, the court felt that the party was being intentionally vague about his financial affairs. While he falsely claimed that his income consisted only of workers compensation benefits, the court strongly believed this was not the case and he was hiding assets (Westenberger v Westenberger 23 AD3d 571, Mongelluzo v Sondgeroth 95 AD3d 1332). The courts assessment of the situation needs to be respected (Ross v Ross 90 AD3d 669). The court record supports the decision to impute $85,000 of income to the defendant This court is reluctant to change it.

The Supreme Court correctly decided to award 100% of the Chester Pond Eddy to the plaintiff. The trial court has broad discretion to distribute property equitably. Unless it can be shown that the court acted unfairly, the decision should stand (Halley-Boyce v Boyce 108 AD3d 503).

It is important to note that “equitable distribution” is not the same as “equal.” Here, the court took into account that the defendant was hiding assets, was being deliberately evasive and willfully failed to comply with court orders (Kerley v Kerley 131 AD3d 1124; Coleman v Coleman 284 AD2d 426).

The defendant contends that the court erred in awarding a 25% interest in the Point Jervis property is incorrect. The court said that it is presumed that any property acquired during marriage is marital property. The person claiming an item is separate property has the burden of proof (Mula v Mula 131 AD3d 1296). Here the defendant claims that he and his father purchased the property during his marriage. Later the father gave his interest to the defendant. The defendant failed to establish he used separate funds to purchase the property.

The remainder of the defendant’s issues were found to be without merit.

In New York, spousal maintenance can be awarded to either spouse in a divorce proceeding. In general the courts will consider various factors when coming up with an amount and the duration.

Courts will weigh things like the length of the marriage. The longer the union the more likely that the lesser earning spouse will receive maintenance. They will also look at things like the if one of the spouses was a stay at home mom, raising children and the health and age of the parties.

Family law issues are stressful and emotional. To ensure your rights are protected, it is important to seek legal guidance that you can trust. Speak to a qualified lawyer from Stephen Bilkis and Associates for guidance. They have office locations to serve you throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today to schedule a free consultation at 1-800-NYNYLAW.

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