Lee v. Lee

• Decision Date: 09 May 2005
• Docket Number: 2003-01602.
• Citation: 18 A.D.3d 508,2005 NY Slip Op 03816,795 N.Y.S.2d 283
• Parties: PAMELA B. LEE, Appellant-Respondent, v. KENNETH LEE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 508

795 N.Y.S.2d 283

2005 NY Slip Op 03816

PAMELA B. LEE, Appellant-Respondent, v. KENNETH LEE, Respondent-Appellant.

2003-01602.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 9, 2005.

In an action for a divorce and ancillary relief, (1) the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Orange County (Green, J.), entered January 8, 2003, which, inter alia, (a) imputed an annual income to the defendant in the sum of only $300,000, (b) awarded her the sum of only $3,100 per month in child support, (c) required her to pay 17% of the children's unreimbursed medical expenses, (d) determined that the value of two corporations that were marital property was only $497,714, (e) awarded her only one third of the value of the corporations in equitable distribution, and (f) awarded the defendant a credit against his child support obligations for any college expenses that he might be called upon to pay, and (2) the defendant cross-appeals, as limited by his brief, from stated portions of the same judgment which, inter alia, (a) awarded the plaintiff non-durational maintenance in the sum of $5,000 per month, (b) failed to give him a credit for certain debt, and (c) imputed an annual income to him in the sum of $300,000.

Ordered that the judgment is modified, on the law, on the facts, and as a matter of discretion, by (1) deleting the 25th decretal paragraph thereof, inter alia, directing the defendant to pay to the plaintiff the sum of $3,100 per month in child support, (2) deleting the 27th decretal paragraph thereof awarding the defendant a credit against his child support obligations for any college expenses that he might be called upon to pay, (3) deleting the 26th decretal paragraph thereof requiring the defendant to pay 83% percent and the plaintiff to pay 17% of all unreimbursed medical and dental expenses and substituting therefore a provision requiring the defendant to pay 100% of such expenses, (4) deleting from the 10th and 32nd decretal paragraphs the sum of "$497,714" substituting therefor the sum of "$577,207," representing the value of the husband's interest in two corporations and by deleting from the 32nd decretal paragraph the sum of "$165,904.66" and substituting therefor the sum of "$192,402.33" representing one third of the value of the husband's interest in the corporations, and (5) adding thereto a provision requiring the defendant to maintain a life insurance policy for the benefit of the plaintiff in the sum of $1 million; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

Ordered that the matter is remitted to the Supreme Court, Orange County, for a new determination of the defendant's monthly child support obligation calculated by application of the appropriate child support percentages (Domestic Relations Law § 240 [1-b] [b] [3]) applied to the sum of $200,000, for a determination of arrears, if any, and for the entry of an amended judgment accordingly; and it is further,

Ordered that the defendant shall continue to pay the sum of $3,100 per month in child support pending further determination of the Supreme Court.

We find no basis upon which to disturb the Supreme Court's imputation of unreported income to the defendant in such an amount that his total annual gross income for the purposes of applying the terms of the Child Support Standards Act (hereinafter CSSA; Domestic Relations Law § 240 [1-b]) amounts to the sum of $300,000 per year (see Domestic Relations Law § 240 [1-b] [b] [5] [i]). However, we do agree with the defendant that the Supreme Court erred in proceeding to calculate his child support liability based on that amount.

The Supreme Court erred in failing to deduct from the sum of $300,000, noted above, the amount that the husband is to be required to pay in maintenance, that is, $60,000 per year (Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]; e.g., Rohrs v Rohrs, 297 AD2d 317 [2002]). The court also erred in considering the maintenance to be received by the wife as her income for purposes of performing the CSSA calculations (e.g. Harrison v Harrison, 255 AD2d 490 [1998]; Huber v Huber, 229 AD2d 904 [1996]). The Court should have applied the standard "child support percentages" defined by statute (Domestic Relations Law § 240 [1-b] [b] [3]) to the first $80,000 of the $240,000 in "combined parental income," 100% of which is attributable to the husband, in accordance with the foregoing. With regard to the remaining $160,000, the Court should have (1) applied the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10), or (2) applied the standard "child support percentages" specified in Domestic Relations Law § 240 (1-b) (b) (3), or (3) applied some combination of both the two approaches stated above (see Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Matter of Lava v Damianou, 10 AD3d 420 [2004]; Jordan v Jordan, 8 AD3d 444 [2004]).

As an alternative to remitting the matter to the Supreme Court for a de novo determination of child support, in the interest of judicial economy, we believe that it is appropriate in the particular circumstances of this case to conduct our own review of the record in light of the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10). Considering, among other things, the amount of the husband's income and the fact that the husband will ultimately be solely responsible for child support (see Domestic Relations Law § 240 [1-b] [f] [10]), we conclude that the standard "child support percentages" specified in Domestic Relations Law § 240 (1-b) (b) (3), should not be applied to the full $160,000 by which the husband's income exceeds...