Juhasz v. Juhasz

• Decision Date: 10 February 2012
• Parties: Dana JUHASZ, Plaintiff–Respondent–Appellant, v. Stephen JUHASZ, Defendant–Appellant–Respondent. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00998
92 A.D.3d 1209
939 N.Y.S.2d 675

Dana JUHASZ, Plaintiff–Respondent–Appellant,
v.
Stephen JUHASZ, Defendant–Appellant–Respondent. (Appeal No. 2.)

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

Feb. 10, 2012.

[939 N.Y.S.2d 677]

Kenney Shelton Liptak Nowak LLP, Buffalo (Shari Jo Reich of Counsel), for Defendant–Appellant–Respondent.

Harris Beach PLLC, Buffalo (Kimberly A. Colaiacovo of Counsel), for Plaintiff–Respondent–Appellant.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

[92 A.D.3d 1210] On a prior appeal in this divorce action, we modified the amended judgment of divorce by, inter alia, vacating the amount awarded to plaintiff for child support because Supreme Court “failed to articulate any basis for that portion of the award based on the parental income exceeding [the statutory cap of] $80,000” applicable at the time the amended judgment was rendered ( Juhasz v. Juhasz, 59 A.D.3d 1023, 1025, 873 N.Y.S.2d 799, lv. dismissed 12 N.Y.3d 848, 881 N.Y.S.2d 392, 909 N.E.2d 85). We remitted the matter to Supreme Court to determine defendant's child support obligation in compliance with the Child Support Standards Act ( id.). Defendant thereafter moved, inter alia, to terminate plaintiff's exclusive use and occupancy of the marital residence and to decrease the award of child support based on the new statutory cap of $130,000 of combined parental income ( see Domestic Relations Law § 240[1–b][c][2]; Social Services Law § 111–i[2][b] ). By the order in appeal No. 1, the court, inter alia, continued plaintiff's exclusive use and occupancy of the marital residence and awarded child support by applying the child support percentage to the entire combined parental income, including the amount exceeding the new statutory cap.

Plaintiff subsequently moved for, inter alia, an order finding defendant in contempt based on his failure to comply with the court's order in appeal No. 1 by failing to pay the full amount of child support for the two months preceding the motion, and she requested attorneys' fees in the amount of $56,662.48. Defendant cross-moved for a reduction in child support based on the fact that, at that time, the eldest of the three children had started college and was no longer living at home. Based on his allegations that plaintiff was not paying property taxes for the marital residence, defendant also requested that he be permitted to pay those taxes and deduct that amount from his child support obligation or, in the alternative, that plaintiff's exclusive use and occupancy of the marital residence be terminated. By the order in appeal No. 2, the court, inter alia, denied that part of the motion seeking an

[939 N.Y.S.2d 678]

award of attorneys' fees and denied the cross motion.

We reject defendant's contention in appeal No. 1 that, in setting the amount of his child support obligation, the court erred [92 A.D.3d 1211] in failing to subtract his maintenance obligation from his income. Where, as here, “there [is] no provision for an adjustment of child support upon the termination of maintenance, ... there [is] no basis for the court to deduct maintenance from [the] defendant's income in determining the amount of child support” ( Salvato v. Salvato, 89 A.D.3d 1509, 1509–1510, 933 N.Y.S.2d 791; see Domestic Relations Law § 240[1–b][b][5][vii][C]; Jarrell v. Jarrell, 276 A.D.2d 353, 354, 714 N.Y.S.2d 462, lv. denied 96 N.Y.2d 710, 727 N.Y.S.2d 696, 751 N.E.2d 944; Block v. Block, 258 A.D.2d 324, 326, 685 N.Y.S.2d 443). We reject defendant's further contentions that the court erred in failing to consider plaintiff's income and in awarding child support on income exceeding the $130,000 statutory cap. First, the court properly noted that plaintiff had “no discernible income.” Second, the court properly applied the statutory percentage to that portion of the combined parental income exceeding $130,000 and set forth its reasons for doing so, which included defendant's considerable assets and “the standard of living that the children would have enjoyed had the marriage not ended” ( Reed v. Reed, 55 A.D.3d 1249, 1251, 865 N.Y.S.2d 414; see Francis v. Francis, 72 A.D.3d 1594, 899 N.Y.S.2d...