Insalaco v. Insalaco

• Court: New York Supreme Court
• Writing for the Court: BERTRAM HARNETT
• Citation: Insalaco v. Insalaco, 315 N.Y.S.2d 166, 64 Misc.2d 674 (N.Y. Sup. Ct. 1970)
• Decision Date: 28 October 1970
• Parties: Madeline A. INSALACO, Plaintiff, v. Dino W. INSALACO and Catherine Rosita Payton a/k/a Catherine Rosita Insalaco, Defendants.

Page 166

315 N.Y.S.2d 166

64 Misc.2d 674

Madeline A. INSALACO, Plaintiff, v. Dino W. INSALACO and Catherine Rosita Payton a/k/a Catherine Rosita Insalaco, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Oct. 28, 1970.

Herman Yellon, Mineola, for plaintiff.

Littauer, Gordon, Ullman, Riseman & Ploscowe, New York City, for defendants.

MEMORANDUM

BERTRAM HARNETT, Justice.

The Insalacos' separation agreement reads, in part, that the husband will pay additional alimony if his:

'* * * annual net income shall be increased in any ensuing year in the amount of $2500 or more than is now reflected in his 1963 Federal Income Tax Return * * *'.

In a prior decision, the Court ruled that net income in that context meant gross income less expenses of producing income less income taxes. In short, the Court ruled the clause meant net income After taxes. The wife now seeks reargument claiming it means net income Before taxes.

The wife's motion for leave to reargue is granted, and upon reargument, the Court adheres to the determination reached in its memorandum decision dated July 30, 1970.

Mrs. Insalaco argues on this motion that Broderson v. Broderson, 30 A.D.2d 675, 291 N.Y.S.2d 892, has been misconstrued by the Court and is not controlling on the question of defining the term 'net income' as used by the parties in their separation agreement. The Court does not agree with plaintiff's interpretation of the Broderson case, as written by the Appellate Division, Second Department, but holds in any event that the same result would prevail even were Broderson not controlling.

The dispute centers about the meaning of the term 'net income' as 'reflected in * * * the 1963 Federal Income Tax Return'. However, the 1963 tax return form does not use the phrase 'net income' except for an obscure and irrelevant reference on one line of Schedule C--3, the Social Security tax computation form, which ultimately reduces to the notion of 'self-employment income' and a tax. On the face of the 1963 return, where all results are aggregated, there is simply a reference on line 9 to 'Total Income'. After the line for subtracting deductions from 'total income' there is no characterization at all as to the resultant total. Moreover, the bottom line of Schedule C, the Business or Professional income schedule, merely recites 'net profit (or loss)'. The tax return does not reflect net income so much as to provide information necessary to infer it. Accordingly, the tax return form itself then is not helpful.

Since the contract is not plain in meaning, and the drafting attorneys predictably disagree as to its intent, the Court must construe the agreement. The construction given by the parties themselves in the six year interval since the agreement became effective would on the surface seem significant in this respect. While the term 'net income' will sometimes be given the interpretation which the parties have placed on it in prior computations, Clark v. Dodge, Sup., 28 N.Y.S.2d 442, affd. 261 App.Div. 1086, 28 N.Y.S.2d 464, part of the problem here is that the computation has been apparently ignored in the past. The Court is constrained to observe here that absolutely no recorded claim for supplementary alimony under the provision in question was ever made by Mrs. Insalaco until this proceeding and, as the record...