Devries v. Devries, 2005-06303.

• Decision Date: 26 December 2006
• Docket Number: 2005-06303.
• Citation: 35 A.D.3d 794,2006 NY Slip Op 10012,828 N.Y.S.2d 142
• Parties: MICHAEL G. DEVRIES, Respondent-Appellant, v. KRISTA-JEAN DEVRIES, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

35 A.D.3d 794

828 N.Y.S.2d 142

2006 NY Slip Op 10012

MICHAEL G. DEVRIES, Respondent-Appellant, v. KRISTA-JEAN DEVRIES, Appellant-Respondent.

2005-06303.

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

Decided December 26, 2006.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Orange County (Owen, J.), dated May 27, 2005, which, after a nonjury trial, awarded her child support in the sum of only $1,702.75 per week, maintenance in the sum of only $697 per week for a period of 10 years, 30% of the plaintiff's business, and equitable distribution in the sum of only $814,110.50, and denied her motion for an attorney's fee, and the plaintiff cross-appeals, as limited by his brief, from stated portions of the same order and judgment, which, inter alia, applied the Child Support Standards Act to his income in excess of $80,000.

Ordered that the order and judgment is modified, on the law and as a matter of discretion, (1) by deleting the ninth decretal paragraph thereof and substituting therefor a decretal paragraph stating "that plaintiff Michael G. DeVries is awarded the full value of the business entity known as `M. DeVries Concrete, Inc.' or any successor entity, which he need not sell," (2) by deleting from the tenth decretal paragraph thereof the words "the total amount of $814,110.50" and substituting therefor the words "the principal amount of $789,610.50," (3) by deleting from the tenth decretal paragraph thereof the words "the sum of $150,000" and substituting therefor the words "the sum of $200,000" and (4) by deleting from the tenth decretal paragraph thereof the words "the remaining balance of $664,110.50 shall be paid in equal monthly installments of $5,534.25, commencing January 1, 2006, until paid in full," and substituting therefor the words "the remaining balance of $589,610.50, plus annual amortized interest thereon computed at the legal rate pursuant to CPLR 5004, shall be paid to the defendant in 144 equal monthly installments commencing January 1, 2006, until principal and interest are paid in full"; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended order and judgment in accordance herewith.

The plaintiff's contention that the trial court erroneously imputed income to him for the purpose of calculating his child support obligation is without merit. In determining a party's child support obligation, "a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential" (Rocanello v Rocanello, 254 AD2d 269 [1998]; see Curran v Curran, 2 AD3d 391, 392 [2003]). The court properly imputed income to the plaintiff since the evidence showed that he earned and spent well in excess of the income reported on his tax return.

The trial court's determination of basic child support was proper. Since the actual combined parental income exceeded $80,000, the court, in its discretion, could apply either the applicable percentage, in this case at least 35% for five or more children, or the factors set forth in Domestic Relations Law § 240 (1-b) (c) (3); (f), or both, to the parental income in excess of $80,000 (see Matter of Cassano v Cassano, 85 NY2d 649, 653 [1995]; Finke v Finke, 15 AD3d 615, 618 [2005]). The court, applying the straight percentage, properly considered $300,000 of the plaintiff's imputed gross income in determining basic child support. The court providently exercised its discretion in calculating child support against $300,000 of the plaintiff's imputed income based upon the standard of living that the parties' children would have enjoyed had the marriage not dissolved (see Domestic Relations Law § 240 [1-b] [c] [3]; [f]; Matter of Cassano v Cassano, supra at 655), and upon the parties' disparate financial circumstances which are apparent in the record.

The Supreme Court properly determined that the plaintiff was liable for his pro rata share of the children's unreimbursed medical expenses (see Domestic Relations Law § 240 [1-b] [c] [5]; Matter of Cassano v Cassano, supra at 655-656; Cohen v Cohen, 21 AD3d 341, 342 [2005]).

The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts (see Mazzone v Mazzone, 290 AD2d 495, 496 [2002]; Sperling v Sperling, 165 AD2d 338, 342 [1991]). The trial court properly considered all of the statutory factors, including the parties' pre-separation standard of living, and providently exercised its discretion in awarding to the defendant maintenance in the amount of $697 per week for a period of 10 years. The amount and duration of the maintenance award will permit the defendant to become self-supporting.

The trial court providently exercised its discretion in denying the defendant's motion for an award of an attorney's fee (see O'Shea v O'Shea, 93 NY2d 187, 193 [1999]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

With regard to the New Paltz property, the defendant proffered no evidence that either the plaintiff or ...