Candea v. Candea

• Citation: 173 A.D.3d 663,104 N.Y.S.3d 637
• Decision Date: 05 June 2019
• Docket Number: Index No. 2310/15,2017–04329
• Parties: Toni CANDEA, Respondent-Appellant, v. Robert E. CANDEA, Jr., Appellant-Respondent.
• Court: New York Supreme Court Appellate Division

173 A.D.3d 663
104 N.Y.S.3d 637

Toni CANDEA, Respondent-Appellant,
v.
Robert E. CANDEA, Jr., Appellant-Respondent.

2017–04329
Index No. 2310/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 8, 2019
June 5, 2019

104 N.Y.S.3d 639

Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis of counsel), for appellant-respondent.

Mark D. Stern, Goshen, NY, for respondent-appellant.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

173 A.D.3d 663

In an action for a divorce and ancillary relief, the defendant appeals, and the plaintiff cross-appeals, from a judgment of divorce of the Supreme Court, Orange County (Elaine Slobod, J.), dated March 24, 2017. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated December 13, 2016, made after a nonjury trial, awarded the plaintiff maintenance in the sum of $ 2,133 per month, awarded the plaintiff child support in the sum of $ 4,313 per month, directed that the marital home be sold and the net proceeds divided equally between the parties, directed that the defendant provide health insurance for the parties' children, awarded the plaintiff a separate property credit in the sum of $ 51,895 related to her inheritance of certain funds and directed the defendant to transfer to her one-half of that sum, and directed that the proceeds of the sale of certain shares of stock be equally divided between the

104 N.Y.S.3d 640

parties. The judgment of divorce, insofar as cross-appealed from, awarded the plaintiff maintenance in the sum of only $ 2,133 per month for a period of only seven years, awarded the plaintiff a separate property credit in the sum of only $ 51,895 related to her inheritance of certain funds, and denied the plaintiff's application for an award of $ 25,000 in counsel fees.

ORDERED the judgment of divorce is modified, on the law, (1) by deleting the provisions thereof awarding the plaintiff a separate property credit in the sum of $ 51,895 related to her inheritance of certain funds and directing the defendant to transfer to her one-half of that sum, and (2) by adding thereto a provision deducting from the defendant's basic child support obligation a sum equal to the plaintiff's pro rata share of the cost of maintaining health insurance for the parties' children; as so modified, the judgment of divorce is affirmed insofar as

173 A.D.3d 664

appealed and cross-appealed from, without costs or disbursements.

The parties were married in 1997, and are the parents of twin daughters born in 2003. The plaintiff commenced this action in March 2015. In June 2016, the parties entered into an in-court stipulation with regard to custody and parenting time. After a nonjury trial on the outstanding issues of child support, maintenance, and equitable distribution, the Supreme Court issued a decision dated December 13, 2016. The court subsequently entered a judgment of divorce dated March 24, 2017, which incorporated the parties' stipulation and referenced the December 13, 2016, decision. The defendant appeals from so much of the judgment of divorce as calculated child support based on his entire income over the statutory cap, awarded maintenance to the plaintiff for a period of seven years, directed him to provide health insurance for the children without prorating the cost between the parties, directed that the plaintiff receive a separate property credit in the sum of $ 51,895 related to her inheritance of certain funds, directed equitable distribution of the proceeds of the sale of certain shares of stock without directing that the parties share the tax liabilities resulting from the sale, and failed to direct that the defendant receive a credit for his payment of expenses related to the marital residence. The plaintiff cross-appeals from so much of the judgment of divorce as awarded her a separate property credit in the sum of only $ 51,895 as related to her inheritance of certain funds, awarded her maintenance in the sum of only $ 2,133 per month for a period of only seven years, and denied her application for an award of $ 25,000 in counsel fees.

The Child Support Standards Act "sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling" ( Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65 ; see Domestic Relations Law § 240[1–b][c] ; Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765 ; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 653, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of Murray v. Murray, 164 A.D.3d 1451, 1453, 84 N.Y.S.3d 524 ). Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both (see Domestic Relations Law § 240[1–b][c][3] ; Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of Murray v. Murray, 164 A.D.3d at 1453, 84 N.Y.S.3d 524 ).

173 A.D.3d 665

The court must articulate an explanation

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