Nicosia v. Rios-Nicosia

Appellate Division of the Supreme Court of the State of New York

Mar 3, 2003

Versions:303 A.D.2d 390

755 N.Y.S.2d 863

—In a matrimonial action in which the parties were divorced by judgment entered May 14, 1997, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Dillon, J.), entered December 21, 2001, as directed him to pay the defendant $1,133.33 per month in child support, effective October 1, 2001, $11,500 in retroactive child support, and $13,005.62 in counsel fees.

Ordered that the judgment is modified, on the law, by deleting the provisions thereof awarding the defendant $1,133.33 per month in child support and $11,500 in retroactive child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of child support in accordance herewith; and it is further,

Ordered that the plaintiff shall pay to the defendant child support in the amount of $300 per month pending the new determination.

Contrary to the plaintiff’s contention, the Supreme Court properly imputed to him income of $80,000 a year (see Bittner v Bittner, 296 AD2d 516, 517 [2002]; Matter ofZhigina v Adzhiashvili, 292 AD2d 625 [2002]; Kalish v Kalish, 289 AD2d 202, 203 [2001]; Zabezhanskaya v Dinhofer, 274 AD2d 476, 477 [2000]), and sufficiently set forth the reasons for its determination (cf. Tri-State Sol-Aire Corp. v United States Fid. & Guar. Co., 198 AD2d 494, 496 [1993]). However, the Supreme Court failed to calculate the “combined parental income” of the parties, in accordance with Domestic Relations Law § 240, and made no specific findings regarding the actual or imputed *391income of the defendant. Consequently, the matter is remitted to the Supreme Court, Westchester County, to calculate child support based on both parties’ updated financial information (cf. Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Groh v Groh, 248 AD2d 354, 356 [1998]).

The Supreme Court providently exercised its discretion in awarding $13,005.62 in counsel fees to the defendant (see Domestic Relations Law § 237 [b]). Krausman, J.P., Schmidt, Crane and Rivera, JJ., concur.