Antinora v. Antinora
| Decision Date | 06 February 2015 |
| Citation | 3 N.Y.S.3d 500,125 A.D.3d 1336,2015 N.Y. Slip Op. 01057 |
| Parties | Julie W. ANTINORA, Plaintiff–Respondent–Appellant, v. Terrance J. ANTINORA, Defendant–Appellant–Respondent. |
| Court | New York Supreme Court — Appellate Division |
Davidson Fink, LLP, Rochester (Donald A. White of Counsel), for Defendant–Appellant–Respondent.
Maureen A. Pineau, Rochester, for Plaintiff–Respondent–Appellant.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.
In this divorce action, defendant husband appeals and plaintiff wife cross-appeals from an order issued by the Referee who presided over the parties' nonjury trial. We note at the outset that the parties' notices of appeal and cross appeal recite that the husband and wife are appealing and cross-appealing from the Referee's order, rather than from the judgment of divorce entered in Supreme Court. Nevertheless, in the exercise of our discretion, we treat the notices of appeal and cross appeal as valid and deem the appeal and cross appeal as taken from the judgment (see CPLR 5520 [c]; Myers v. Myers, 87 A.D.3d 1393, 1394, 930 N.Y.S.2d 124 ).
We reject the husband's contention that the amount and duration of the spousal maintenance award were an abuse of the court's discretion (see generally Hartog v. Hartog, 85 N.Y.2d 36, 51–52, 623 N.Y.S.2d 537, 647 N.E.2d 749 ). Contrary to the wife's contention, the husband established at trial that he was entitled to credits against any award for retroactive maintenance for his voluntary payments toward “the other party's share of what prove[d] to be marital debt” (Le v. Le, 82 A.D.3d 845, 846, 918 N.Y.S.2d 561 ; see generally Myers v. Myers, 87 A.D.3d 1393, 1394–1395, 930 N.Y.S.2d 124 ; Heiny v. Heiny, 74 A.D.3d 1284, 1285, 904 N.Y.S.2d 191 ).
We agree with the husband that the court failed to articulate a proper basis for applying the Child Support Standards Act (CSSA) to the combined parental income in excess of the statutory cap, which was $136,000 at the time (see Domestic Relations Law § 240[1–b][c][2], [3] ; Social Services Law § 111–i [2 ][b]; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 654–655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Irene v. Irene [Appeal No. 2], 41 A.D.3d 1179, 1181, 837 N.Y.S.2d 797 ). In particular, the court failed to indicate how the children's actual needs would not be met if it had calculated child support at the statutory cap (see generally Matter of Miller v. Miller, 55 A.D.3d 1267, 1268–1269, 864 N.Y.S.2d 624 ). It is well settled that “ ‘blind application of the statutory formula to [combined parental income] over [$136,000], without any express findings or record evidence of the children's actual needs, constitutes an abdication of judicial responsibility and renders meaningless the statutory provision setting a cap on strict application of the formula’ ” (Matter of Malecki v. Fernandez, 24 A.D.3d 1214, 1215, 809 N.Y.S.2d 316 ). In addition, although not raised by the parties, we conclude that the court erred in failing to order that child support be adjusted upon termination of maintenance, pursuant to Domestic Relations Law § 240(1–b)(b) (5)(vii)(C) (see Martin v. Martin, 115 A.D.3d 1315, 1316, 983 N.Y.S.2d 384 ; Ripka v. Ripka, 77 A.D.3d 1384, 1386, 908 N.Y.S.2d 510 ). We therefore further modify the judgment by vacating the award of child support, and we remit the matter to Supreme Court to determine the husband's present and prospective child support obligations in compliance with the CSSA, following a further hearing, if necessary (see Martin, 115 A.D.3d at 1316, 983 N.Y.S.2d 384 ), and to order that child support be adjusted upon termination of maintenance.
We reject the contentions of the parties that the court erred in determining that they wastefully dissipated marital assets (see Domestic Relations Law § 236[B][5][d][12] ). We conclude, however, that the court erred in its calculations of such wasteful dissipation in determining the equitable distribution award. In our view, the record establishes that the husband wastefully dissipated $5,862, and that the wife wastefully dissipated $11,398.59, in marital assets. The husband is thus entitled to a credit of one half of the difference of those two amounts, i.e., $2,768.30, and we therefore further modify the judgment by ordering plaintiff to pay defendant that amount (see Sotnik v. Zavilyansky, 101 A.D.3d 1102, 1104, 956 N.Y.S.2d 514 ).
Contrary to the wife's contention, the court did not abuse its discretion in adjusting the distributive award in lieu of requiring the husband to contribute to her attorney's fees. Inasmuch as the wife is the less monied spouse, thereby triggering the rebuttable presumption entitling her to attorney's fees, the court was required to articulate why it was not awarding attorney's fees to the wife (see Domestic Relations Law § 237[a] ; Leonard v. Leonard, 109 A.D.3d 126, 129–130, 968 N.Y.S.2d 762 ). We conclude that the court sufficiently articulated its rationale when it explained that, instead of having the husband contribute to the wife's attorney's fees, it would increase the distributive award to the wife by granting her, inter alia, the proceeds of an unsold luxury automobile and relieving her of her share of the marital credit card debt (see Crook v. Crook, 85 A.D.3d 958, 959, 925 N.Y.S.2d 881 ; Redgrave v. Redgrave, 22 A.D.3d 913, 914, 802 N.Y.S.2d 550 ; see generally McCarthy v. McCarthy, 172 A.D.2d 1040, 1040, 569 N.Y.S.2d 547 ).
With respect to the value of the marital residence, we agree with the parties that the court erred in simply averaging the values set forth in the appraisals of the parties' experts without articulating its reason for doing so (see Domestic Relations Law § 236[B][5][g] ; Capasso v. Capasso, 119 A.D.2d 268, 272, 506 N.Y.S.2d 686 ). We therefore further modify the judgment by vacating the decretal paragraph concerning the marital residence, and we remit the matter to Supreme Court for “appropriate findings of fact and conclusions of law as required by statute” with respect to the valuation of the marital residence (Diachuk v. Diachuk, 117 A.D.2d 985, 986, 499 N.Y.S.2d 532 ).
Contrary to the wife's contention, in light of the husband's prior voluntary maintenance payments (see Domestic Relations Law § 236[B][6][a] ), and considering the husband's share of marital debt (see Le, 82 A.D.3d at 846, 918 N.Y.S.2d 561 ; see also Myers, 87 A.D.3d at 1394–1395, 930 N.Y.S.2d 124 ), we conclude that the court properly determined that she is not entitled to retroactive spousal maintenance.
We reject the wife's further contention that she is entitled to a credit for the statutory add-on expenses permitted in addition to the basic child support obligation under the CSSA, which include child care and uninsured health care expenses (see Domestic Relations Law § 240[1–b][c][4]–[5] ). Although we agree with the wife that she is entitled to a pro rata share of such payments from the husband, we also agree with the husband that he is entitled to a credit against such future expenses based on his past voluntary maintenance and child support payments (see Lester v. Lester, 237 A.D.2d 872, 873, 654 N.Y.S.2d 528 ), and we therefore further modify that part of the judgment awarding child support. The record establishes that the husband's pro rata share of the statutory add-on expenses is $15,008.28. In light of our decision to remit for a new determination of the husband's basic child support obligation, we cannot determine the aforementioned credit due to the husband for future add-on expenses, and we direct Supreme Court upon remittal to determine that credit after calculating the husband's basic child support obligation.
We agree with the wife, however, that the court erred in concluding that her retirement account sponsored by her premarital employer was marital property and in failing to provide for the equitable distribution of the husband's Roth IRA. At trial, the wife rebutted the presumption that her retirement...
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