Hapeman v. Hapeman

• Decision Date: 25 July 1996
• Citation: 646 N.Y.S.2d 583,229 A.D.2d 807
• Parties: Christine A. HAPEMAN, Appellant-Respondent, v. Jon F. HAPEMAN, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 583

646 N.Y.S.2d 583

229 A.D.2d 807

Christine A. HAPEMAN, Appellant-Respondent, v. Jon F. HAPEMAN, Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

July 25, 1996.

Robert C. Hunter, Hudson, for appellant-respondent.

Karen R. Crandall, Albany, for respondent-appellant.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and SPAIN, JJ.

MIKOLL, Justice.

Cross appeals from a judgment and amended judgment of the Supreme Court (Klein, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered December 5, 1994 and January 3, 1995 in Columbia County, upon a decision of the court.

Both parties appeal from aspects of the judgment and amended judgment entered in this matrimonial action concerning issues of child support, maintenance, equitable distribution, counsel fees, custody (of the two youngest children) and visitation. The parties were married in October 1971 and had five children: Christine (born in 1973), Claudia (born in 1974), Jon (born in 1977), Margaret (born in 1986) and David (born in 1990). Throughout their marriage, defendant was employed as a computer operator and instructor at IBM, while plaintiff was primarily a homemaker who, at times, worked as a babysitter, Town Clerk and secretary. Marital problems developed in 1986 and plaintiff was treated for depression in 1989. In August 1990, defendant left the marital residence following proceedings in Family Court. Shortly thereafter, Claudia and Jon voluntarily went to live with defendant, after running away from their former home.

In March 1991, Family Court ordered defendant to pay $275 per week in maintenance and child support plus $10 per week toward arrears, upon a finding that defendant's pro rata share of child support was unjust. This order was modified in November 1991 to reduce defendant's support to $540 semimonthly beginning November 30, 1991. The reduction reflected the fact that defendant had paid the outstanding mortgage on the marital residence through proceeds of a loan which he had obtained, thereby reducing plaintiff's monthly expenses by $549--the amount of the monthly mortgage payment which she was obligated to make.

In August 1992, plaintiff commenced this action for divorce and ancillary relief. Defendant counterclaimed for like relief in his answer. The parties stipulated that plaintiff retain custody of Margaret and David (Christine also resided with plaintiff) and that defendant have visitation. The issues were tried in August 1993 and the parties also stipulated as to the division of personal marital property. Supreme Court, inter alia, granted the parties a divorce, awarded custody of Margaret and David to plaintiff with visitation to defendant, and custody of Claudia and Jon to defendant with visitation to plaintiff subject to the wishes of the children and plaintiff. Supreme Court also awarded plaintiff child support and maintenance and provided for distribution of the marital property. Plaintiff moved for reconsideration of the award of child support arrears. By amended judgment, Supreme Court referred the determination of any arrears to Family Court.

Plaintiff's argument that Supreme Court erred in awarding child support in an amount less than provided by the statutory guidelines, without adhering to the statutory requirements, has merit. Supreme Court did not use defendant's correct annual salary in calculating child support. The appropriate sum to use in determining income under the Child Support Standards Act is the party's gross income as it "should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law § 240[1-b][b][5][i]. A statutory deduction should be taken from such gross income for Federal insurance contributions act (FICA) taxes which defendant has paid (see, Domestic Relations Law § 240[1-b][b][5][vii][H] ). A further statutory deduction should be given to defendant for the five years for which he will make weekly maintenance payments of $100 (see, Domestic Relations Law § 240[1-b][b][5][vii][C] ).

According to his W-2 form, defendant's gross income for the calendar year 1993 is $1,888 semimonthly or $45,312 annually. Defendant's FICA payment is $144.43 semimonthly or $3,466.32 annually. Defendant's maintenance payments total $5,200 annually. Based on these figures, the annual income upon which defendant's child support obligation should have been calculated is $36,645.68 ($45,312 minus $8,666.32 [representing $3,466.32 plus $5,200]. Multiplying the income figure by the statutory child support percentage of 25% for the two children in plaintiff's custody (see, Domestic Relations Law § 240[1-b][b][3][ii] ), the correct annual child support which defendant is obligated to pay until his payment of maintenance terminates is $9,161.42 annually or $176.18 weekly. Upon the termination of his maintenance payments, defendant's annual child support obligation will be $10,461.42 annually or $201.18 weekly.

Supreme Court's award of $133.32 weekly ($66.66 per week for each of the two children in plaintiff's custody) is concededly below the statutory guidelines and Supreme Court did not specifically state the factors which it considered and which warranted departure from the guidelines. Examination of Supreme Court's decision and the findings of fact and conclusions of law reveals no reasoning for the child support award (see, Dean v. Dean, 214 A.D.2d 786, 787, 624 N.Y.S.2d 666; cf., Hart v. Hart, 227 A.D.2d 698, 699-700, 641 N.Y.S.2d 459, 460; Creighton v. Creighton, 222 A.D.2d 740, 741-742, 634 N.Y.S.2d 870, 872). Thus, recalculation of the award is necessary.

As the record provides sufficient documentation to compute such obligation (see, Matter of Mammone v. Yellen, 224 A.D.2d 883, 885, 638 N.Y.S.2d 509, 510; Matter of Sorrentino v. Sorrentino, 203 A.D.2d 829, 830, 611 N.Y.S.2d 357; cf., Dean v. Dean, supra, at 787, 624 N.Y.S.2d 666), this court will modify the judgments accordingly. As previously calculated, the child support award to plaintiff should be $176.18 per week for the time period in which defendant pays maintenance and $201.18 per week after the termination of defendant's payment of maintenance.

Plaintiff's contention that defendant should have been ordered to pay child support for the parties' child, Christine, until such date as she completes her college education must be rejected. Christine was over 21 years of age at the time of Supreme Court's decision and therefore payment of such expense was not statutorily required (see, Domestic Relations Law § 240[1-b][b][2] ). Nor are the requisite special circumstances present that would permit the court to order that such expense be paid in the best interest of the child (see, Domestic Relations Law § 240[1-b][c][7]; see also, Graham v. Graham, 175 A.D.2d 540, 542, 572 N.Y.S.2d 800; cf., Haimowitz v. Gerber, 153 A.D.2d 879, 880, 545 N.Y.S.2d 599). Thus, it cannot be said that Supreme Court abused its discretion as to this issue.

We reject plaintiff's assertion that Supreme Court erred in permitting defendant to recoup from the sale of the residence the proceeds of a loan, plus interest thereon, that he had taken out to pay off the mortgage on the marital residence because proof of the loan and interest was allegedly "faulty". It was plaintiff's responsibility to pay the mortgage as she was the person residing in the marital home and receiving child support (see, Gundlach v. Gundlach, 223 A.D.2d 942, 943, 636 N.Y.S.2d 914, 916; see also, Chasin v. Chasin, 182 A.D.2d 862, 863, 582 N.Y.S.2d 512). Plaintiff failed to make the monthly payments. In order to avoid a foreclosure defendant borrowed the money from a friend, Richard Dill, and paid the mortgage balance. Dill and defendant testified that the loan was in the sum of $12,283 and plaintiff concedes that defendant paid the mortgage in the amount of $12,283.28. The prevailing interest rate was shown to be 7.5% and, thus, defendant was properly allowed to recoup the amount of the loan plus interest from the net proceeds of the sale of the marital residence.

Plaintiff argues that defendant was similarly allowed to improperly recoup from the net proceeds of the sale of the marital residence $5,500 representing a loan made to the parties by defendant's mother for the purchase of a van. This argument is also without merit. As with the mortgage loan, there was adequate proof of two loans totaling that amount.

Plaintiff's contention that Supreme Court erred in its award of maintenance and in requiring that plaintiff pay her own health insurance is rejected. Supreme Court held that plaintiff was capable of substantial self support but, since she was out of the labor market for some time, awarded her maintenance of $100 a week for a period of five years commencing with the date of the judgment. This determination, however, includes only one of the statutory factors to be considered--the ability to become self-supporting--in making such award (see, Domestic Relations Law § 236[B][6][a][4] ). Although Supreme Court did not fulfill its statutory obligation to identify and discuss the statutory factors it relied upon and to articulate reasons for its conclusions (see, Dean v. Dean, 214 A.D.2d 786, 787, 624 N.Y.S.2d 666, supra; DeSantis v. DeSantis, 205 A.D.2d 928, 613 N.Y.S.2d 737; Weaver v. Weaver, 192 A.D.2d 777, 778, 596 N.Y.S.2d 190), there is sufficient evidence in the record to enable this court to review the issue and make appropriate findings, which this court will do rather than remit the matter (see, Weaver v. Weaver, supra, at 778, 596 N.Y.S.2d 190; Wilson v. Wilson, 101 A.D.2d 536, 538, 476 N.Y.S.2d 120, appeal dismissed 63 N.Y.2d 768, 481 N.Y.S.2d 688, 471 N.E.2d 460, lv. denied 64 N.Y.2d 607, 487 N.Y.S.2d 1027, 476 N.E.2d 1006).

The record indicates that the award of maintenance is proper. This was a longstanding marriage of approximately 20 years' duration in which plaintiff was the...