Cardia v. Cardia
| Decision Date | 07 April 1994 |
| Citation | 610 N.Y.S.2d 620,203 A.D.2d 650 |
| Parties | Julie CARDIA, Respondent, v. Victor CARDIA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marshall S. Goldman P.C. (Marshall S. Goldman, of counsel), White Plains, for appellant.
George David Rosenbaum, New York City, for respondent.
Before CARDONA, P.J., and MIKOLL, WEISS and PETERS, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Delaney, J.), ordering equitable distribution of the parties' marital property, entered July 18, 1991 in Westchester County, upon a decision of the court.
Following a 10-day trial of this matrimonial action, Supreme Court dissolved the marriage, awarded plaintiff custody of the parties' only child, awarded plaintiff maintenance in the amount of $100 per week and child support in the amount of $150 per week, and distributed a portion of the marital assets. From the judgment entered, defendant appeals.
Among the marital assets was a two-family house in the Town of Scarsdale, Westchester County, in which the parties previously resided and which, at the time of trial, was used as rental property. Defendant contends that Supreme Court should have ordered the property sold and the proceeds equitably distributed. We find this claim meritless. The property was in foreclosure with an arrears of over $68,000. Supreme Court ordered that if the foreclosure provided any net profit it would be divided equally after adjustments for arrearages or unpaid counsel fees. In the circumstances herein presented, we find the determination of Supreme Court to be entirely proper. Yet, we believe that Supreme Court should have made adequate provision for the use of rental income should such be received prior to the foreclosure sale. Accordingly, we find that any rental income produced by such property be applied, in its entirety, to reduce the parties' arrearages and postforeclosure liability.
With respect to the distribution of the marital property, we believe that Supreme Court properly set forth the factors it relied upon in making its distribution and that such award has a substantial basis in the record (see, Domestic Relations Law § 236[B][5]; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15). We similarly find no merit to defendant's contention that it was error to require his share of the proceeds from the sale of marital property located in the Town of Lewisboro, Westchester County, to be held in escrow until all arrearages are paid (see, Sementilli v. Sementilli, 102 A.D.2d 78, 477 N.Y.S.2d 626). Finally, we do not find that Supreme Court's refusal to order plaintiff to purchase health and dental insurance for defendant and the parties' child to be an abuse of discretion (see, Domestic Relations Law § 236[B][8]; see also, Murphy v. Murphy, 110 A.D.2d 688, 487 N.Y.S.2d 812).
In reviewing Supreme Court's award of maintenance and child support, it is significant that defendant, a college graduate who had been in the field of advertising for eight years prior to the commencement of the divorce action, relinquished his career to open a retail children's clothing store. Supreme Court imputed to defendant an annual income of $60,000, based upon his income in 1988 while employed in the field of advertising coupled with documentary evidence to the effect that thereafter he spent thousands of dollars more than he contended he earned. Supreme Court based its maintenance and child support awards on that amount. Based on this finding and the court's finding that defendant "embarked on a course of conduct willfully designed to avoid his responsibilities", and considering all other relevant factors (see, Domestic Relations Law § 236[B][6] including plaintiff's future earning capacity and her share of marital property, we conclude that Supreme Court correctly awarded plaintiff maintenance and that the sum awarded for child support was...
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...in failing to order defendant to purchase health insurance for plaintiff upon the facts of this case (see, Cardia v. Cardia, 203 A.D.2d 650, 651, 610 N.Y.S.2d 620; see also, Simmons v. Simmons, 159 A.D.2d 775, 777, 551 N.Y.S.2d 997). Plaintiff's contention that Supreme Court abused its disc......
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