Barbara Samimi, Respondent, v Sohrab Samimi, Appellant.
Supreme Court, Appellate Division, Second Department, New York
22 NYS3d 515
Appeal from stated portions of a judgment of the Supreme Court, Nassau County (Margaret Reilly, J.), entered August 21, 2013.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
“[I]n making any decision relative to equitable distribution, maintenance or child support, the court must set forth the factors that it considered and the reasons for its decision, ‘and such may not be waived by either party or counsel‘” (Otto v Otto, 150 AD2d 57, 61 [1989], quoting
As part of its equitable distribution determination, the Supreme Court, without elaborating on its specific reasoning, awarded the plaintiff title to the marital residence and awarded the defendant ownership of his computer consulting business. This Court, however, can make its own findings where the reasons for the Supreme Court‘s determination appear on the face of the record (see Kobylack v Kobylack, 62 NY2d 399, 403 [1984]; Majauskas v Majauskas, 61 NY2d 481, 493-494 [1984]). The record established that the defendant failed to cooperate with the valuation of the computer consulting business and failed to provide financial disclosure to the plaintiff as required. Furthermore, the gross earnings of the business for the years 2008 and 2009 totaled $142,791 and $172,345, respectively. The tax returns for 2008 and 2009 show that the business also took large tax deductions. The testimony of the parties also established that the parties and their children were sustained solely by the earnings of the business, including, but not limited to, the payment of the mortgage, taxes, utilities, the parties’ automobiles, the children‘s extracurricular activities, and family vacations. Moreover, the record established that the defendant failed to comply with court orders and mandated discovery. The defendant‘s testimony and evidence were also shown on several occasions to be less than credible. The record established that the plaintiff continues to reside in the marital residence with the parties’ three children. In addition, the record showed that the marital residence, while valued at $615,000, was encumbered by a mortgage of $256,250 and property taxes totaled $14,000. Upon consideration of all of the relevant factors (see
“A parent‘s child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support” (Matter of Solis v Marmolejos, 50 AD3d 691, 692 [2008] [internal quotation marks and citations omitted]). As such, “[t]he court is not bound by a party‘s actual reported income in applying the basic child support obligation, and instead could use that party‘s actual earning capacity or impute an amount onto the gross income reported by the party” (id.). Here, the Supreme Court was permitted to impute income to the defendant in calculating his child support obligation for the parties’ three children, since his account of his finances was not credible (see Matter of Barnett v Ruotolo, 49 AD3d 640 [2008]). The defendant‘s testimony and financial documentation indicated incongruously that his annual income was only approximately one-third of his annual expenses, and no evidence was submitted to show that these expenses had not been paid in a timely manner (see id.). In light of the testimony and evidence proffered at trial, the Supreme Court did not improvidently exercise its discretion in imputing income of $130,000 to the defendant in calculating his child support obligation.
“The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined based on its own unique facts” (Grumet v Grumet, 37 AD3d 534, 535 [2007]). “Although the trial court is required to consider the parties’ preseparation standard of living in determining the appropriate amount and duration of maintenance, the court must also consider the reasonable needs of the recipient spouse and the preseparation standard of living in the context of the other factors” (id.; see
“Pursuant to
The defendant‘s remaining contentions are either unpreserved for appellate review or without merit. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.
Motion by the respondent on an appeal from a judgment of the Supreme Court, Suffolk County, entered August 21, 2013, inter alia, to strike the appellant‘s brief or stated portions of the brief on the ground that they refer to matter dehors the record or contain factual misrepresentations. By decision and order on motion of this Court dated November 24, 2014, that branch of the motion which is to strike the appellant‘s brief or stated portions of the brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to strike stated portions of the appellant‘s brief on the ground that they refer to matter dehors the record is granted to the extent that those portions of the appellant‘s brief referring to matter dehors the record which are listed as items (A), (C), (D), (G), and (J) in paragraph 9 of the affirmation in support of the motion by Steven D. Kommor, dated September 3, 2014, are deemed stricken and have not been considered on appeal; and it is further,
Ordered that the motion is otherwise denied. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.