Johnson v. JohnsonJohnson v. Johnson
Decided and Entered: May 16, 2019
Calendar Date: March 19, 2019
Before: Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
Bret A. Johnson, Syracuse, appellant pro se.
Barclay Damon LLP, Syracuse (J. Eric Charlton of counsel), for respondent.
MEMORANDUM AND ORDER
Lynch, J.P.
Appeal from a judgment of the Supreme Court (Cerio Jr., J.), entered August 16, 2017 in Madison County, ordering, among other things, equitable distribution of the parties’ marital property and child support, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 2003 and have one child (born in 2002). The wife commenced this action for divorce in December 2015 and, one month later, sought certain temporary relief, including an order directing the husband to pay the household expenses, “temporary support” in the amount of $500 per month and the fee to complete a professional appraisal of the marital business. In April 2016, the parties stipulated to the entry of a temporary order directing the husband to pay $2,200 in “temporary support” and the appraisal fee. Thereafter, the husband moved to modify the April 2016 temporary order, arguing that he was entitled to reimbursement of support payments because the wife had begun working. Supreme Court denied the husband‘s motion but ordered, pursuant to the parties’
After the trial, Supreme Court, as relevant here, ordered the husband to pay child support in the amount of $723.33 per month effective May 1, 2017 and reimbursed the husband for overpaid support. In addition, the court awarded the wife $17,031, representing capital contributions from marital assets to two marital businesses. A judgment was thereafter entered and the husband appeals, arguing that the court erred by imputing income for purposes of maintenance and child support, miscalculated the support overpayment credited to him, and erred in awarding the wife one half of the marital contributions to the marital businesses.
The Child Support Standards Act (see
To calculate the maintenance and child support due, Supreme Court considered the wife‘s 2016 W-2 statements, which indicated that her 2016 gross income was $31,360, and the husband‘s 2016 tax return, which indicated that his 2016 reported gross income was $39,093. The court then imputed income to the wife based on her projected 2017 gross annual
“A parent‘s child support obligation is determined by his or her ability to provide support, rather than the parent‘s current financial situation” (Mack v Mack, 169 AD3d 1214, 1217 [2019] [internal quotation marks, brackets and citation omitted]). Income may be imputed based on a party‘s earning capacity, “as long as the court articulates the basis for imputation and the record evidence supports the calculations” (id.). Contrary to the husband‘s argument, we discern no abuse of Supreme Court‘s “broad discretion to impute income when determining the amount of child support and maintenance” (Pfister v Pfister, 146 AD3d 1135, 1136 [2017]; see Macaluso v Macaluso, 145 AD3d 1295, 1296 [2016]). Where, as here, a party pays for personal expenses through a business account, the court has the authority to impute income (see Seale v Seale, 149 AD3d 1164, 1170 [2017]; Pfister v Pfister, 146 AD3d at 1137; Armstrong v Armstrong, 72 AD3d 1409, 1413 [2010]). Further, a court may, as here, impute income where there is clear and undisputed evidence of a party‘s actual income during the pendency of the proceeding (DeSouza v DeSouza, 163 AD3d at 1187).
Although we agree that Supreme Court‘s determination to impute income was correct, the resulting child support calculation was not correct. When determining a party‘s income, the CSSA allows statutory deductions for FICA taxes “actually paid” (
After determining the parties’ respective child support obligations, Supreme Court proceeded to undertake a comprehensive and detailed analysis of what the husband‘s temporary maintenance and support obligations would have been if the wife‘s actual salary had been considered during the pendency of the action and determined that the husband had overpaid “support” in the amount of $3,285.52. The husband contends that he is entitled to a larger credit for “support.” We do not agree. The parties agreed to the support payments during the pendency of the action, it is not clear what portion of the agreed-upon “support” payments ordered in April 2016 were attributed to child support, and Supreme Court‘s final child support order was not retroactive to the date the action was commenced (see Pfister v Pfister, 146 AD3d at 1138). Generally, absent certain circumstances not present here, there is a “strong public policy” against recoupment of support overpayments (Baraby v Baraby, 250 AD2d 201, 205 [1998]; see Johnson v Chapin, 12 NY3d 461, 466 [2009]; Xiaokang Xu v Xiaoling Shirley He, 77 AD3d 1083, 1085 [2010]; Rosenberg v Sack, 46 AD3d 1273, 1274 [2007], lv dismissed 10 NY3d 800 [2008]; Fox v Fox, 306 AD2d 583, 583 [2003], lv dismissed 1 NY3d 622 [2004]). However, a trial court has the authority to adjust an equitable distribution award where it is determined after trial that a temporary maintenance award was excessive (see
Finally, the husband contends that Supreme Court should not have awarded the wife any amount that represented her share of the capital contributions to the marital businesses. Generally, “the valuation of a business for equitable distribution purposes is an exercise properly within Supreme Court‘s fact-finding power to be guided by expert testimony” (Pfister v Pfister, 146 AD3d at 1140 [internal quotation marks and citations omitted]), and an equitable distribution award “will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors” (Smith v Smith, 152 AD3d 847, 848 [2017] [internal quotation marks and citation omitted]; accord Cervoni v Cervoni, 141 AD3d 918, 920 [2016]). It is not disputed that marital funds were used to create both businesses and that both were marital property. Although it is apparent that there was some value to the businesses, in the absence of any expert evidence, the court properly declined to value and distribute a share of the marital businesses (see Iwahara v Iwahara, 226 AD2d 346, 348 [1996]; Niles v Niles, 126 AD2d 874, 875 [1987]). Under the circumstances presented, we discern no abuse of discretion in the court‘s award to the wife representing her contributions from marital assets to start the businesses (see
Clark, Mulvey, Aarons and Rumsey, JJ., concur.
ORDERED that the judgment is modified, on the law, without costs, by increasing defendant‘s child support obligation to $773 per month, and, as so modified, affirmed.
Lynch, J.P.
ASSOCIATE JUSTICE