Dobbins v. Dobbins

• Decision Date: 08 August 1977
• Citation: Dobbins v. Dobbins, 397 N.Y.S.2d 412, 59 A.D.2d 548 (N.Y. App. Div. 1977)
• Parties: Neva A. DOBBINS, Respondent, v. William H. DOBBINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 412

397 N.Y.S.2d 412

59 A.D.2d 548

Neva A. DOBBINS, Respondent, v. William H. DOBBINS, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 8, 1977.

Heiko & Bush, P. C., Garden City (Alan N. Resnick, Hempstead, and Joseph A. Barbaccia, Mineola, of counsel), for appellant.

Lee M. Albin, Mineola, for respondent.

Before MARTUSCELLO, J. P., and MARGETT, SUOZZI and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In an action to recover arrears under a separation agreement, the defendant husband appeals from a money judgment of the Supreme Court, Nassau County, entered June 29, 1976, which is in favor of the plaintiff wife, after a nonjury trial.

Judgment reversed, on the law, without costs and disbursements, and action remitted to Trial Term for further proceedings consistent herewith.

On August 3, 1967 the parties executed a separation agreement which in pertinent part, provided, in the ninth paragraph thereof: "In the event that (whether because of retirement, or at age 65, and thereafter, whichever occurs later, or because of ill health, loss of employment or otherwise at any time) the payments to be made hereunder to the wife for her own and the children's support shall exceed fifty percent (50%) of the husband's annual salary, wages and income from all other sources, as reported on his Federal income tax return for any year, the wife agrees that payments to be made hereunder shall, on the husband's request, be renegotiated. It is the intent of the parties that in such event the payments to the wife for her own and the children's support shall be reduced to not more than fifty percent (50%) of the husband's annual salary, wages and income from all other sources, and including bonuses, if any."

On March 31, 1974 defendant requested that plaintiff renegotiate the stipulated support payments under paragraph nine of the separation agreement. Defendant had paid the stipulated support of $1,000 per month up to and including August 1, 1973. Between September 1, 1973 and January 31, 1976, arrears in the amount of $10,575 had accumulated. In his answer, defendant alleged that his income had diminished during that period. Plaintiff had refused to renegotiate the agreement pursuant to paragraph nine despite repeated demands by defendant for her to do so.

In a counterclaim, defendant alleged that during the period in question he had paid the sum of $19,123 to plaintiff although only $5,594.50 would have been due and owing to her under paragraph nine. He demanded judgment for the difference. The trial court awarded judgment to plaintiff, holding that the losses and expenses occasioned in the conduct of defendant's business were not to be deducted from his business income for the purpose of measuring his obligation of support under paragraph nine. Defendant contends that this was error. He argues that the parties intended "income" to mean gross business receipts less business expenses directly related thereto.

The term "net income" is ambiguous (Insalaco v. Insalaco,64 Misc.2d 674, 675, 315...