Orlando v. Orlando

• Decision Date: 21 December 1995
• Citation: 635 N.Y.S.2d 752,222 A.D.2d 906
• Parties: Joan ORLANDO, Respondent, v. Anthony ORLANDO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 752

635 N.Y.S.2d 752

222 A.D.2d 906

Joan ORLANDO, Respondent, v. Anthony ORLANDO, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 21, 1995.

Blatchly & Simonson P.C. (Bruce D. Blatchly, of counsel), New Paltz, for appellant.

Bloom and Bloom P.C. (Peter E. Bloom, of counsel), New Windsor, for respondent.

Before CARDONA, P.J., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

CASEY, Justice.

Appeal from a judgment of the Supreme Court (Vogt, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered March 23, 1995 in Ulster County, upon a decision of the court.

Appeal from an order of the Supreme Court (Bradley, J.), entered July 12, 1995 in Ulster County, which granted plaintiff's motion to hold defendant in contempt of court for failure to obey the provisions of the judgment of divorce.

In his appeal from the judgment entered in this matrimonial action, defendant first contends that Supreme Court abused its discretion in awarding child support in the amount of $200 per week and directing defendant to pay all of the children's unreimbursed medical expenses. According to defendant, his financial status is such that any award of child support other than the statutory minimum is improper. The argument is meritless.

During the early years of the parties' marriage, defendant began a precious metals business which he built into a substantial jewelry business by the time he moved out of the marital residence in 1991. The business was also plaintiff's sole source of income until the parties separated in 1991, after which she no longer worked in the business. According to defendant, the jewelry business encountered financial difficulties, which began within a year after plaintiff commenced this action and culminated in defendant's claim at trial that the business is defunct. Defendant argues that with the business closed he has no income and, therefore, his child support obligation cannot be set at any amount greater than the statutory minimum.

A parent's child support obligation is not necessarily determined by his or her current financial condition (see, Matter of Darling v. Darling, 220 A.D.2d 858, 632 N.Y.S.2d 252). The relevant statutory provisions applicable in both Supreme Court (see, Domestic Relations Law § 32[3] ) and Family Court (see, Family Ct. Act § 413[1][a] ) refer to parents who are "possessed of sufficient means or able to earn such means " (emphasis supplied). Accordingly, the courts have "considerable discretion" to attribute or impute income to a parent based upon his or her ability to earn sufficient means to pay child support (Matter of Susan M. v. Louis N., 206 A.D.2d 612, 613, 614 N.Y.S.2d 584). It follows, therefore, that in determining defendant's child support obligation, Supreme Court was not bound by defendant's claim that he has no income due to the failure of his business (see, Matter of Tsoucalas v. Tsoucalas, 140 A.D.2d 333, 527 N.Y.S.2d 828).

Supreme Court found that defendant is very knowledgeable in the jewelry business and capable of making a comfortable living, a finding which is amply supported by the record. Defendant effectively conceded that his lack of income was at least partially the result of his conscious decision not to pursue business or employment opportunities until the divorce is settled. In these circumstances, we are of the view that it would be appropriate to impute or attribute income to defendant based upon his proven ability to earn as established by the income previously derived from the jewelry business (see, Matter of Darling v. Darling, supra ). The problem, however, is that there is insufficient evidence in the record to determine the income produced by the business. There are business records which reflect the volume of business in prior years, but the records do not establish the income available to defendant as a result of the business. There is also evidence that the business records produced by defendant are incomplete and/or inaccurate. It is equally significant that although the record contains the parties' income tax returns for several earlier years when the business was active, both parties invoked their 5th Amendment privilege against self-incrimination when asked whether the returns were accurate.

The Child Support Standards Act provides that when there is insufficient evidence to determine gross income, "the court shall order child support based upon the needs or standard of living of the child, whichever is greater" (Domestic Relations Law § 240[1-b][k]. For the reasons previously set forth, we are of the view that this is an appropriate case to apply the provision (cf., Matter of Buley v. Buley, 142 A.D.2d 814, 530 N.Y.S.2d 697). The record establishes that the family lived a comfortable lifestyle, which included luxury automobiles for the parties and private school for the children. Based upon our review of the record we conclude that the child support award of $200 per week reflects the standard of living of the children and,...