Chasin v. Chasin

• Decision Date: 02 April 1992
• Citation: 182 A.D.2d 862,582 N.Y.S.2d 512
• Parties: Laura CHASIN, Respondent, v. Milton CHASIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 512

582 N.Y.S.2d 512

182 A.D.2d 862

Laura CHASIN, Respondent, v. Milton CHASIN, Appellant.

Supreme Court, Appellate Division Third Department.

April 2, 1992.

Klein & Klein (Aaron E. Klein, of counsel), Kingston, for appellant.

Stewart T. Schantz, Highland, for respondent.

Before WEISS, P.J., and MIKOLL, MERCURE, CREW and CASEY, JJ.

WEISS, Presiding Justice.

Appeal from a judgment of the Supreme Court (Connor, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered November 29, 1990 in Ulster County, upon a decision of the court.

This divorce action was commenced on November 13, 1987 and extensive pendente lite relief was granted by Supreme Court in an August 18, 1988 order. In an open court stipulation made on August 1, 1989, defendant's opposition to the divorce was withdrawn, plaintiff was given custody of the parties' two children, and the value of marital assets and liabilities were agreed upon. In addition, the parties agreed to consult with each other concerning college selection for the children and related issues, and to submit disputes to arbitration. The case proceeded to trial on the issues of child support, maintenance, equitable distribution of marital property and counsel fees.

Following the trial, Supreme Court directed defendant to pay permanent maintenance, child support, health insurance premiums, uninsured medical/dental expenses and 78% of the children's college costs, and made an award of equitable distribution of the marital estate. Plaintiff was denied counsel fees. This appeal by defendant ensued.

Defendant is correct in his contention that the child support awarded is excessive and did not follow the mandates of the Child Support Standards Act (L.1989, ch. 567). Without comment or reasoning, the flat percentage of 25% was applied against the parties' combined gross annual income of $166,763, including that which exceeded $80,000 (see, Domestic Relations Law § 240[1-b][c][3], allocating 78% as defendant's share and 22% as plaintiff's share. This was error (see, Quilty v. Quilty, 169 A.D.2d 979, 980, 564 N.Y.S.2d 877). The blind application of the statutory formula to the combined parental income over $80,000 without any express findings of the children's actual needs constitutes an abdication of judicial responsibility (see, Harmon v. Harmon, 173 A.D.2d 98, 578 N.Y.S.2d 897) and renders meaningless the statutory provision setting a cap on strict application of the formula (see, Domestic Relations Law § 240[1-b][c][3]; Reiss v. Reiss, 170 A.D.2d 589, 590, 566 N.Y.S.2d 365, lv. dismissed 78 N.Y.2d 908, 573 N.Y.S.2d 469, 577 N.E.2d 1061; Quilty v. Quilty, supra ).

We find other fundamental flaws in the award of child support. Because shelter is inherent in the basic child support obligation, it was improper for Supreme Court to compel payment of the mortgage on the children's residence in addition to the formula standard without stating the reasons for deviating from the formula (see, Meyer v. Meyer, 173 A.D.2d 1021, 570 N.Y.S.2d 250). Nor are health insurance premiums proper add-ons to the basic child support obligation. The Child Support Standards Act provides that uninsured medical expenses be pro-rated between parents (see, Domestic Relations Law § 240[1-b][c][5]. For these reasons, the award of child support as made must be set aside.

We also agree with defendant's contention that the equitable distribution award was erroneous. The record shows that Supreme Court acknowledged that Domestic Relations Law § 236(B)(5)(d) provides a list of factors which must be considered in an equitable distribution award. The court, however, failed to follow the statute by stating which factors it did consider or specifying the evidence upon which the award was based, other than a conclusory statement that it had considered the factors, the income of the parties and the duration of the marriage in awarding each party one half. Generally, such failures render an award erroneous (see, Meyer v. Meyer, supra; O'Sullivan v. O'Sullivan, 94 A.D.2d 407, 409, 464 N.Y.S.2d 583; see also, Rosenstock v. Rosenstock, 139 A.D.2d 164, 167, 531 N.Y.S.2d 133). While this court has recently held that "[t]here is no rigid catechism which requires that a trial court parrot the words of the statute verbatim" (Monette v. Monette, 177 A.D.2d 802, 803, 576 N.Y.S.2d 416), we find no basis here upon which we may determine if there has been substantial compliance with the statute. We have held it to be sufficient when the court makes reference to the factors it did consider and states the reasons for its decision (id.; see, Cappiello v. Cappiello, 66 N.Y.2d 107, 110, 495 N.Y.S.2d 318, 485 N.E.2d 983; O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 498 N.Y.S.2d 743, 489 N.E.2d 712). Here the court did neither. Moreover, granting prejudgment interest on the award to plaintiff was an abuse of discretion (see, Ritz v. Ritz, 166 A.D.2d 568, 560 N.Y.S.2d 853; Schanback v. Schanback, 159 A.D.2d 498, 552 N.Y.S.2d 370, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676; cf., Largiader v. Largiader, 151 A.D.2d 724, 542 N.Y.S.2d 789; Provosky v. Provosky, 124 A.D.2d 1068, 508 N.Y.S.2d 722). The action moved promptly to trial ¹ and the record fails to show prejudice to either party caused by delay chargeable to the other. The appreciation in value of the marital assets inured to both since the value of the marital estate was made as of the time of trial. The court's award of maintenance similarly fails to state the facts found by and the reasoning of the court (see, Domestic Relations Law § 236[B][6][b].

We have already held that the decision in this case fails to satisfy the statutory requirements and must be set aside. However, rather than remitting the matter for a new trial, this court is empowered to substitute a discretionary determination for that of Supreme Court provided we set forth the factors considered and the reasons for our decision (see, Lo Muscio-Hamparian v. Hamparian, 137 A.D.2d 500, 501, 524 N.Y.S.2d 455). With a full trial record before us, we opt to do so here in the interest of judicial economy. Since changes in child support, maintenance and equitable distribution of marital property in this case are interrelated and the modification of one may alter another, the three items should be addressed together (see, Bizzarro v. Bizzarro, 106 A.D.2d 690, 692-693, 484 N.Y.S.2d 144).

At the time of marriage, plaintiff was a college senior and defendant was in the fourth year of a graduate program at Pennsylvania College of Optometry. Neither was employed nor possessed of significant property. After graduation they moved to the City of Kingston, Ulster County, where plaintiff worked as a teacher and defendant as an optometrist. In 1971, defendant opened his own optometrical office and was assisted by plaintiff for two years during which she also continued to teach school. Her employment ended with the birth of their daughter on May 22, 1974. A second daughter was born on February 5, 1979.

The parties' joint efforts and contributions helped them to achieve their mutual success. Plaintiff was very active in political and civic affairs, serving in various offices of the County and State political party committees and becoming a town party chair and its delegate to national conventions. She has also served as a paid campaign coordinator and was twice elected to two-year terms as a County legislator. After the parties separated in 1987, plaintiff was employed by the State and earned approximately $37,000 at the time of trial.

Defendant's optometry practice thrived and his earnings increased from approximately $43,000 in 1982 to almost $100,000 (including taxable fringe benefits) in 1988. While the value of defendant's optometry practice is nonliquid and dependent upon his personal services, it is the source of the income upon which his ability to make payments of child support and maintenance depends. Defendant's future earning capacity will continue to substantially exceed that of plaintiff. Both parties are provided with the use of an automobile by their employers and both receive generous fringe benefits, including retirement and tax-favored health insurance programs.

In addition to earned income, both parties had other income. Plaintiff receives at least $3,700 annually in passive income and has approximately $18,000 in separate property. The bulk of defendant's 1988 additional income ($20,000 in interest and $7,500 in capital gains) comes from the 1987 installment sale of one half of his professional corporation. ² The principal balance of $150,000 is being paid to him over seven years ending in 1993. Plaintiff controls discretionary trust funds established by the children's grandparents valued at approximately $66,000 for each child, which while not appropriately used for the children's regular support (see, Guiry v. Guiry, 159 A.D.2d 556, 557, 552 N.Y.S.2d 421), are resources available for special opportunities and nonessential items such as private education and travel and should play a role in the choices for their higher education. To the degree that plaintiff's share of the marital property will enhance her...