Dougherty v. Dougherty

• Decision Date: 02 September 2015
• Docket Number: 2013-01636, Index No. 200529/09.
• Citation: 16 N.Y.S.3d 251,131 A.D.3d 916,2015 N.Y. Slip Op. 06705
• Parties: Eleanor DOUGHERTY, appellant-respondent, v. Bryan DOUGHERTY, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 916
16 N.Y.S.3d 251
2015 N.Y. Slip Op. 06705

Eleanor DOUGHERTY, appellant-respondent
v.
Bryan DOUGHERTY, respondent-appellant.

2013-01636, Index No. 200529/09.

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

Sept. 2, 2015.

16 N.Y.S.3d 253

Eleanor Dougherty, Sea Cliff, N.Y., appellant-respondent pro se.

Fass & Greenberg, LLP, Garden City, N.Y. (Florence M. Fass and Joseph C. Lobosco of counsel), for respondent-appellant.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS and JOSEPH J. MALTESE, JJ.

Opinion

131 A.D.3d 916

Appeal and cross appeal from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 18, 2012. The judgment, upon a decision dated May 27, 2011, made after a nonjury trial, inter alia, directed equitable distribution of the

131 A.D.3d 917

parties' marital property and directed the defendant to pay child support.

ORDERED that the judgment is modified, on the law, by deleting the provisions thereof directing the defendant to pay the sum of $3,000 per month in child support commencing on June 1, 2011, up to and including February 11, 2012, and the sum of $2,040 per month in child support commencing on February 12, 2012, up to and including April 27, 2015; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith, and for the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that pending a new determination by the Supreme Court of the child support payments to be made by the defendant, the child support payment to be paid by the defendant, as set forth in the judgment appealed from, shall remain in effect.

The Supreme Court properly imputed $75,000 in annual income to the plaintiff, based upon her education and experience, and her admission that she was capable of earning $80,000 as a registered nurse. “In determining a child support obligation, a court need not rely on a party's own account of his or her finances” (Bell v. Bell, 277 A.D.2d 411, 412, 716 N.Y.S.2d 717 ), but may, in the exercise of its considerable discretion (see Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655 ), impute income to a party based upon his or her employment history, future earning capacity, and educational background (see Matter of Bouie v. Joseph, 91 A.D.3d 641, 936 N.Y.S.2d 276 ; Brown v. Brown, 239 A.D.2d 535, 657 N.Y.S.2d 764 ), and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party's credentials in his or her chosen field (see Matter of Gebaide v. McGoldrick, 74 A.D.3d 966, 967, 901 N.Y.S.2d 857 ; Matter of Perry v. Pica, 22 A.D.3d 903, 904–905, 802 N.Y.S.2d 772 ).

Contrary to the defendant's contention, the Supreme Court's imputation of income to him of $225,000 annually was supported by evidence of his past earning history and his future earning capacity (see

16 N.Y.S.3d 254

Turco v. Turco, 117 A.D.3d 719, 722, 985 N.Y.S.2d 261 ; Lago v. Adrion, 93 A.D.3d 697, 699, 940 N.Y.S.2d 287 ).

Contrary to the plaintiff's contention, the Supreme Court properly calculated her pro rata share of the basic child support obligation. Pursuant to the Child Support Standards Act (Domestic Relations Law § 240[1–b] ), the court was required to deduct the defendant's maintenance obligation from his income prior to the calculation of child support (see

131 A.D.3d 918

Domestic Relations Law § 240[1–b][b][5][vii][C] ; Thoma v. Thoma, 21 A.D.3d 1080, 803 N.Y.S.2d 572 ). Here, after deducting from the defendant's gross income the amount that he pays in maintenance each year, the Supreme Court properly determined the parties' pro rata shares of the combined parental income.

“Unlike the obligation to provide support for a child's basic needs, ‘support for a child's college education is not mandatory’ ” (Matter of Lynn v. Kroenung, 97...