171 Misc. 2d 169 | N.Y.C. Fam. Ct. | 1996
OPINION OF THE COURT
In the instant matter the petitioner and his current spouse entered into a settlement agreement with Continental Casualty Company on September 16, 1992 as compensation for his personal injury, pain and suffering and the spouse’s loss of consortium claims which occurred as a result of an automobile accident. According to the terms of the settlement agreement, the petitioner is guaranteed to receive $633,000 with an
The respondent opposes such a finding by arguing that the compensation received as a result of a personal injury award should be considered as income citing DeVeto v DeVeto (85 Misc 2d 1060) and Matter of Chapman v Chapman (28 AD2d 1028) in support. The respondent also notes that it is undisputed that the petitioner’s injury has not prevented him from working and the petitioner’s union does not oppose him from seeking nonunion employment. The respondent alleges that the subject children’s minimum basic needs are not being met by the current order of support and no significance should be given to the portion of the settlement agreement that states that the personal injury monies represent damages for the petitioner’s pain and suffering. Lastly, the respondent cites Family Court Act § 413 (1) (b) (5) as the statutory authority for this court to exercise its discretionary powers in the case at bar. The petitioner concurs with the Hearing Examiner’s reasoning.
Erie County Dept. of Social Servs. (Trunfio) v Labarge (159 Misc 2d 806) analyzed the receipt of a personal injury award within the purview of section 413 (1) (e) of the Family Court Act. Trunfio reasoned that the receipt of compensatory dam
As noted by the respondent, the language of Family Court Act § 413 (1) (b) (5) states, " '[i]ncome’ shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph”. This court agrees with the respondent’s argument that the Legislature intended to provide the courts with the discretion to include as income items other than those specifically enumerated (Marsh v Fieramusca, supra). Accordingly, this court finds that the portion of the petitioner’s settlement agreement which is structured so that the petitioner receives the amount of $1,350 from October 1, 1995 for life can be considered as income for the support of the subject children pursuant to the reasoning in Trunfio (supra) and the language of Family Court Act § 413 (1) (b) (5). The nonrecurring payments of the petitioner’s personal injury award cannot be considered as income within the ambit of Family Court Act § 413 (1) (b) (5).
Based on the foregoing, this court herein grants the petitioner’s objection to the extent as set forth herein and it is hereby ordered that the matter be remanded back to the Hearing Examiner to amend the prior order of child support to be consistent with this decision and order.