Mellen v. Mellen

CourtNew York Supreme Court Appellate Division
Citation688 N.Y.S.2d 674,260 A.D.2d 609
PartiesLARRY MELLEN, Appellant,<BR>v.<BR>SHERI MELLEN, Respondent.
Decision Date26 April 1999

260 A.D.2d 609
688 N.Y.S.2d 674

LARRY MELLEN, Appellant,
SHERI MELLEN, Respondent.

Decided April 26, 1999.

Mangano, P. J., Bracken, Krausman and Goldstein, JJ., concur.

Ordered that the judgment is modified by (1) deleting the seventh decretal paragraph thereof which, inter alia, awarded the defendant wife arrears of child support in the sum of $56,953, and (2) adding to the 58th decretal paragraph thereof, which directed the plaintiff to pay the defendant $20,572.53 as a distributive award from his retirement plan, a provision directing that the defendant's share of the plaintiff's retirement plan be transferred to her by a Qualified Domestic Relations Order; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a recalculation of child support arrears, taking into account the actual payments made by the plaintiff in accordance with an order of the Family Court, Westchester County, dated January 17, 1995, and the appropriate allocation between temporary maintenance and temporary child support.

Contrary to the plaintiff's contention, the Supreme Court properly determined that for purposes of calculating child support his actual income was higher than that reported on the parties' income tax return. "A court is not bound by a party's account of his [or her] finances, and when a party's account of his [or her] finances is not believable, the court is justified in finding an actual or potential income greater than that claimed" (Matter of Mobly-Jennings v Dare, 226 AD2d 730; see

[260 A.D.2d 610]

also, Matter of Blaise v Loreman, 257 AD2d 976; Brown v Brown, 239 AD2d 535). It was also proper for the court to consider sums of money which the plaintiff received from his parents as income for purposes of determining the amount of his support obligation (see, Domestic Relations Law § 240 [1-b] [b] [5] [iv] [D]; Matter of Collins v Collins, 241 AD2d 725, 727; Tesler v Tesler, 228 AD2d 491; Lapkin v Lapkin, 208 AD2d 474). In addition, the Supreme Court sufficiently articulated the basis for its decision to apply the child support percentage of the Child Support Standards Act (see, Domestic Relations Law § 240) to the combined parental income over $80,000 (see, Matter of Cassano v Cassano, 85 NY2d 649; Klug v Klug, 258 AD2d 624; Matter of Lo Macchio v Lo Macchio, 247 AD2d 539), and we perceive no basis to disturb its finding that...

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15 cases
  • Maddaloni v. Maddaloni
    • United States
    • New York Supreme Court Appellate Division
    • 24 Agosto 2016
    ...they would not necessarily affect the judgment (see Anderson v. Anderson, 50 A.D.3d at 610, 855 N.Y.S.2d 194 ; Mellen v. Mellen, 260 A.D.2d 609, 611, 688 N.Y.S.2d 674 ; Samuelsen v. Samuelsen, 124 A.D.2d 650, 651, 508 N.Y.S.2d 36 ; cf. Oakes v. Patel, 20 N.Y.3d 633, 643–645, 965 N.Y.S.2d 75......
  • Hymowitz v. Hymowitz
    • United States
    • New York Supreme Court Appellate Division
    • 16 Julio 2014 permitted to offset such payments against accrued arrears ( see Crane v. Crane, 264 A.D.2d at 752, 694 N.Y.S.2d 763; Mellen v. Mellen, 260 A.D.2d 609, 610, 688 N.Y.S.2d 674; Grossman v. Merke–Grossman, 248 A.D.2d 670, 670–671, 670 N.Y.S.2d 580). We agree with the defendant's contention t......
  • Salman v. Salman, 53611/2011.
    • United States
    • United States State Supreme Court (New York)
    • 11 Octubre 2012
    ...776 N.Y.S.2d 877 [2d Dept 2004] [the Court properly imputed loans that the father received from his mother as income]; Mellen v. Mellen, 260 A.D.2d 609, 610, 688 N.Y.S.2d 674 [2d Dept 1999] [it was proper for the Court to consider sums of money which the husband received from his parents as......
  • Ford v. Ford, 2018-02191
    • United States
    • New York Supreme Court Appellate Division
    • 15 Diciembre 2021
    ...of those payments between child support and maintenance (see Stern v. Stern, 273 A.D.2d 298, 708 N.Y.S.2d 707 ; Mellen v. Mellen, 260 A.D.2d 609, 610, 688 N.Y.S.2d 674 ), and whether payment of any arrears due should be made in one lump sum or periodic sums (see Sinnott v. Sinnott, 194 A.D.......
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