Burtchaell v. Burtchaell

• Decision Date: 19 July 2007
• Docket Number: 501710.
• Citation: 42 A.D.3d 783,2007 NY Slip Op 06144,840 N.Y.S.2d 449
• Parties: DAVID H. BURTCHAELL, Respondent-Appellant, v. SUSAN BURTCHAELL, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 783

840 N.Y.S.2d 449

2007 NY Slip Op 06144

DAVID H. BURTCHAELL, Respondent-Appellant, v. SUSAN BURTCHAELL, Appellant-Respondent.

501710.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided July 19, 2007.

Cross appeals (1) from a judgment of the Supreme Court (Kavanagh, J.), entered February 16, 2006 in Ulster County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court, and (2) from an order of said court, entered February 16, 2006 in Ulster County, which, inter alia, denied defendant's motion to set aside certain portions of the prior decision.

KANE, J.

The parties were married on October 27, 1994 and have one child (born in 1997). Plaintiff commenced this divorce action in 2004 and defendant counterclaimed. Prior to trial, the parties stipulated that plaintiff would not oppose defendant's grounds for divorce and reached an agreement that defendant would have sole custody of their child and plaintiff would have visitation. Following trial, Supreme Court granted defendant a divorce, distributed the marital property and ordered plaintiff to pay defendant maintenance and child support. Each party moved for posttrial relief, which the court denied. Both parties appeal from the court's judgment of divorce and the subsequent order addressing their posttrial motions.

Supreme Court did not abuse its discretion in determining the amount of maintenance. The amount and duration of maintenance are generally left to the trial court's discretion, as long as the court considers the statutory factors and explains the bases for its conclusions (see Carman v Carman, 22 AD3d 1004, 1008 [2005]). If the court does not specifically identify the factors relied upon, this Court can review the record to verify that the facts support the court's findings (see Moschetti v Moschetti, 277 AD2d 838, 838-839 [2000]). Maintenance is designed to provide temporary support while one spouse gains skills, education or experience necessary to become self-sufficient (see Carman v Carman, supra at 1008). The parties were in their early 40s, plaintiff had prior back problems, defendant was disabled due to seizures, anxiety and depression and their son had multiple disabilities. Plaintiff was employed and also received minimal income from his self-run business, although the court did not quantify the exact amount of such income. Defendant received Social Security disability benefits and rental income from apartments in the marital residence, which the court found to be separate property. Although defendant has been disabled since 1997 and takes care of the parties' son, she previously worked full time and she acted as a bookkeeper for plaintiff's business during the marriage notwithstanding her disability and the child's disability. The record does not reveal the extent of her disability, but does demonstrate her ability to work at home as a bookkeeper. Considering these circumstances, we cannot say that the court abused its discretion in setting a two-year limit on maintenance (see Zabin v Zabin, 176 AD2d 262, 263 [1991]; compare Malamut v Malamut, 133 AD2d 101, 103 [1987]).

We must clarify and adjust Supreme Court's determination of plaintiff's income for child support purposes. Defendant contends that the court should have imputed income to plaintiff from his business; in fact the court did, albeit in an unorthodox manner. Because it was impossible to determine how much income plaintiff reaped from his business, the court found that the amount was minimal and could be adequately absorbed by simply declining to deduct plaintiff's $200 per week maintenance obligation from his gross income prior to determining the child support award. That maintenance obligation should have been deducted to determine plaintiff's income (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). Although the trial court has considerable discretion in fashioning a support award, including the imputation of income to a party for support purposes (see Spencer v Spencer, 298 AD2d 680, 681 [2002]), the court here erred in the method of calculating support. While both approaches may appear to result in the same amount of child support, the proper method is to add in $200 per week as income imputed to plaintiff from his business, then subtract his $200 per week maintenance obligation.

We also must correct Supreme Court's mathematical calculation of support. Plaintiff's gross salary of $39,000, plus $10,400 in imputed income, minus $2,984 for FICA and $10,400 for his maintenance obligation, gives him an income of $36,016 for child support purposes. Accepting the court's figure of $25,800 as defendant's income, the combined parental income is $61,816. Plaintiff's 17% basic child support obligation considering his 60% contribution to the combined parental income gives rise to a monthly award of $525, not $510 as the court ordered.

Plaintiff was not entitled to a portion of the equity in the marital residence gained through a reduction in the mortgage balance. The residence was defendant's separate property, having been acquired prior to the marriage. If marital assets are used to reduce one party's separate indebtedness, the other spouse can recoup his or her equitable share of the expended marital funds (see Lewis v Lewis, 6 AD3d 837, 839 [2004]; Micha v Micha, 213 AD2d 956, 957 [1995]). Both parties...