Strohli v. StrohliStrohli v. Strohli
ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.
Mark Strohli, appellant-respondent, v Jessica Strohli, respondent-appellant.
Montalbano, Condon & Frank, P.C., New City, NY (Martin S. Butcher of counsel), for appellant-respondent.
Eric Ole Thorsen, New City, NY, for respondent-appellant.
DECISION & ORDER
In an action for a divorсe and ancillary relief, the plaintiff appeals, and the defendant cross-appeals, from stated portions of a judgment of divorce of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), entered December 30, 2015. The judgment of divorce, insofar as appealed from, upon an amended decision of the same court dated April 1, 2015, made after a nonjury trial, inter alia, (1) failed to deduct the annual amount of the plaintiff‘s maintenance payments from the plaintiff‘s income in calculating his child support obligation, (2) failed to direct that the plaintiff‘s maintenance payments terminate as provided for in
ORDERED that the cross appeal from so much of the judgment of divorce as (1) failed to award the defendant arrears under the purported pendente lite оrder, and (2) failed to award the defendant a credit for marital funds allegedly used by the plaintiff to pay pendente lite obligations is dismissed, without costs or disbursements; and it is further,
ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting from the eighth decretal paragraph thereof the provision directing the plaintiff to pay 79% of camp expenses, and substituting therefor a provision directing the plaintiff to pay 79%, and the defendant to pay 21%, of reasonable camp expenses for the children, required as and for child care in order for the defendant to be employed, (2) by adding to the eleventh decretal
The parties were married in 1992, and are the parents of five children, born in 1995, 1999, 2003, 2007, аnd 2010, respectively. This action for a divorce and ancillary relief was commenced in 2013. The plaintiff did not graduate high school, but obtained a real estate license when he was 18 that he never used and let lapse. He also obtained an emergency medical technician license from New Jersey. The plaintiff has a public insurance adjustor‘s license from Florida that allows him to work in New Jersey and Connecticut. Although the plaintiff had a home rеnovation license, he allowed it to lapse. The plaintiff‘s primary source of income over the years has been from real estate investment, building renovations, and construction. At the time of trial, the plaintiff worked as a driver for a local ambulance corps and was self-employed in construction and renovation of real property.
The defendant has been the primary caretaker of the parties’ five children but has also engaged in various economic activities during the marriage, including assisting the plaintiff with his business. She has a background in the clothing business, including clothing design and sales. Her parents own a successful children‘s clothing company. The defendant testified at
The parties, with the assistance of family, purchased the marital residence and also acquired several investment proрerties, either together, in individual names, or with others.
On June 12, 2014, the parties placed a stipulation on the record resolving the issues of custody and parental access, pursuant to which the parties share joint legal custody of the four children then under the age of 18, with the defendant having primary physical custody and the plaintiff having parental access as set forth therein.
The issues of child support, maintenance, and equitable distribution were determined by the Supreme Court in an amended decision dated April 1, 2015, and the court signed a judgment of divorce entered December 30, 2015. In this decision, the court, after 12 days of trial, found neither party to be credible. The plaintiff appeals, and the defendant cross-appeals, from stated portions of the judgment of divorce.
Contrary to the defendant‘s contention, it was appropriate for the Supreme Court to impute income to the plaintiff in the amount of only $86,064 per year, as the record did not support imputing a greater income to the plaintiff. The court‘s imputation of income based on the plaintiff‘s self-reported expenses listed in his net worth statement, along with the parties’ standard of living over the course of the marriage, was sufficient to form a basis for imputed income (see DeSouza-Brown v Brown, 71 AD3d 946, 947). The court providently exercised its discretion in imputing income to the defendant in the amount of $31,200 per year. The court may impute income to a party based on, among other things, her employment history, future earning capacity, and educational background (see Petkova v Radulovic, 163 AD3d 1014, 1014-1015). Here, the credible trial evidence established that the defendant had a high school diploma, was employed prior to trial in retail sales, and had been offered a job paying $15 per hour.
“The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and evеry case must be determined on its unique facts” (Culen v Culen, 157 AD3d 926, 928; see D‘Alauro v D‘Alauro, 150 AD3d 675, 676; Gafycz v Gafycz, 148 AD3d 679, 679). In cases such as this one, commenced prior to January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and
The plaintiff‘s contention that the annual amount of durational maintenance payments should have been deducted from his income in calculating his child support obligation is without merit (see
We agree with the Suрreme Court‘s determination to direct the plaintiff to pay his pro rata share, 79%, of the camp expenses of the parties’ children. However, the court should have qualified that these be reasonable camp expenses, required as and for child care in order for the defendant to be employed, and should have directed that the defendant pay her pro rata share, 21%, of the reasonable camp expenses of the рarties’ children (see
Considering the best interests of the parties’ children and the circumstances of the case, including that the parties raised their children in the Orthodox Jewish religion and the children attended private yeshivas, the Supreme Court providently exercised its discretion in directing the plaintiff to pay 79% of
We agree with the defendant that the Supreme Court should have directed the plaintiff to purchase life insurance in the defendant‘s favor in an amount sufficient to secure the payment of the plaintiff‘s maintenance and child support obligations (see
“Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors‘” (Fairchild v Fairchild, 149 AD3d 810, 810-811, quoting Fields v Fields, 15 NY3d 158, 170; see
“In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property‘” (Spera v Spera, 71 AD3d 661, 662, quoting Milnes v Milnes, 50 AD3d 750, 750; see Payne v Payne, 4 AD3d 512, 513-514). “Nonetheless, [w]here it is evident that the Supreme Court considered all relevant factors and the reasons for its decision are articulated, the court is not required to specifically cite to and analyze eаch statutory factor” (Spera v Spera, 71 AD3d at 662 [internal quotation marks omitted]; see Milnes v Milnes, 50 AD3d at 750).
Contrary to the defendant‘s contention, it is evident that the Supreme Court considered and applied a number of the relevant statutory factors set forth in
We disagree with the Supreme Court‘s determination that all the outstanding debt was marital and that it should be shared by the parties in accordance with their respective incomes. Based on the record, except as otherwise set forth, the parties did not establish marital debt. Moreover, the court should not have directed that the parties pay debts that the court failed to specify.
In making a determination to award possession of the marital residence, “the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties‘” (Mosso v Mosso, 84 AD3d 757, 760, quoting Goldblum v Goldblum, 301 AD2d 567, 568; see Sotnik v Zavilyansky, 101 AD3d 1102, 1103). Here, under the circumstances of this case, including that the defendant was awarded physical custody of the parties’ children and that the plaintiff failed to establish an immediate need for his share of the proceeds of the sale of the marital residence, the Supreme Court providently exercised its discretion in awarding the defendant possession of the marital residence until the youngest child attains the age of 18 (see Sinanis v Sinanis, 114 AD3d 756, 757; Goldblum v Goldblum, 301 AD2d at 568). However, this should not preclude the parties from selling the marital residence sooner, upon the defendant‘s consent.
We agree with the defendant that she is entitled to receivе a 50% credit against the proceeds of the sale of the marital residence
We agree with the Supreme Court‘s determination to decline to distribute any alleged marital personal property, as there was insufficient evidence regarding any specific identification or value of any such property (see e.g. Angot v Angot, 273 AD2d 423, 424). However, based on the testimony and other evidence, the court should have found that the plaintiff is entitled to the following items of separate pеrsonal property: (a) silver items: three menorahs, six kiddush cups and matching plates, a large tray, a large fruit basket, a flower vase, and two single candlestick holders; and (b) the plaintiff‘s collections of baseball cards and comic books as they existed at the time of the commencement of the action. The plaintiff is entitled to one-half of the family photographs, videos, and picture albums as they existed at the time of the commencement of the action.
We agree with the plaintiff that the Supreme Court should have awarded him a credit of $19,400 for his 50% share of marital funds that were withdrawn from the parties’ joint checking account by the defendant. The defendant withdrew $20,000 on May 8, 2013, and an additional $18,800 on July 12, 2013, one week prior to the commencement of this action, and failed to substantiate that these funds were used for marital expenses. These were marital funds subject to equitable distribution (see Iacono v Iacono, 145 AD3d 972, 974; Renck v Renck, 131 AD3d 1146, 1149; DeGroat v DeGroat, 84 AD3d 1012).
The plaintiff argues on appeal that the judgment of divorce should have included a provision holding the defendant in contempt for violating the parental access provisions of a purported pendente lite order, and should have awarded the plaintiff a credit against maintenance and child support arrears for (a) payments made by the plaintiff pursuant to the purported pendente lite order and (b) payments made voluntarily by the plaintiff during the pеndency of the action. The defendant argues on her cross appeal that the judgment of divorce should have awarded her (1) arrears under the
The parties’ remaining contentions are without merit.
SCHEINKMAN, P.J., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court