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Horne v Horne


NY Slip Op 08198

December 7,2016

This is an appeal by the defendant for portions of a divorce judgement from the Supreme Court in Nassau County. The judge denied the defendant’s application for a separate property credit, and order the defendant to pay 2/3 of a HELOC, imputed the defendant’s income at $90K when figuring child support, failed to award spousal maintenance, and ordered the defendant to pay college costs. The judgement also denied equitable distribution of the Plaintiff’s Estee Lauder stock option, and was ordered to pay assessed arrears in the amount of $107K.

The judgement was affirmed.

The Supreme Court properly exercised its discretion in preventing him from offering documentation to illustrate his claim of a separate property credit regarding their home. This is because he willfully failed to comply with the plaintiff’s discovery requests (Sataria v. Sataria 123 AD3d 909, 910; Mei Yan Zang v. Santana 52 AD3d 484; Aha Sales, Inc. v. Curative Bath Products, Inc. 110 AD3d 1019. The defendant’s testimony was insufficient to satisfy the burden to show that the down payment on the marital home was from his separate property (Romano v. Romano 40 AD3d 837, McGloughlin v. McGloughlin 63 AD3d 1017.

The Supreme Court correctly concluded that the defendant must pay 2/3 of the family’s HELOC. They stated that the expenses incurred during marriage should be paid equally by both parties Rodrigues v. Rodrigues 70 AD3d 1799; Bodgan v. Bodgan 260 AD2d 521, 522. The court did mention however that a financial debt incurred by one of the parties in pursuit of a separate interest should remain a separate debt (Kosovsky v. Zahl 257 AD2d 522; Corless v. Corless 18 AD3d 493. Here the defendant failed to prove that the HELOC interest was part of a separate business interest.

The Supreme Court correctly imputed the income of the defendant in the amount of $90K per year. A court may impute income based on past income and projected future earnings (Greisman v. Greisman 98 AD3d 1079, Sotnik v. Zavilyansky 1013d 1102.

The spousal maintenance is decided on a case by case basis (Mazzone v. Mazzone 290 AD2d 495, 496; Carr-Harris v Carr-Harris 98 AD3d 548,551) The courts look at the standard of living, income, duration of the marriage, present and future earnings of the parties (Domestic Relations Law 236 [B][6][a], Heymann v. Heymann 102 AD3d 832, 834. The appellate court declined to disturb the decision of the Supreme Court.

The court did not err in their decision regarding the defendant’s argument that he should receive an equitable distribution of the plaintiff’s Estee Lauder stock option because it couldn’t be proven that it existed Antonian v. Antonian 215 AD2d 421; Gredel v. Gredel 128 AD2d 834.

As to the amount of the $107K which accrued during the trial, the court was correct in this decision. The defendant produced no documentation to prove otherwise Strumlauf v. Sandine Originals 80 AD2d 912.

Depending on the jurisdiction, maintenance is also referred to as spousal support or alimony. This represents hat one spouse pays to another spouse as the result of a divorce.

The purpose of maintenance is to ensure that the receiving spouse is able to continue to live in a similar lifestyle as when they were married. It also allows for the receiving spouse to learn a trade, go to school and/or get a job so that they can become self-supporting.

There are two types of maintenance; pendente lite and final order. Pendente lite maintenance is temporary and can be awarded at the beginning of a divorce action. This money allows the receiving spouse enough money to cover living expenses and maintain their standard of living during the divorce proceedings.

Final order maintenance is part of the final divorce judgment and can be for a fixed period of time, or permanent (for the lifetime of the recipient, although this is rare).

If you have a legal issue, speak to a lawyer at Stephen Bilkis and Associates to ensure that your rights are protected. We have offices throughout New York, including locations in Manhattan, Staten Island, Queens, the Bronx, Brooklyn, Nassau County, Suffolk County and Westchester County. Call today for a free consultation at 1-800-NYNYLAW.

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