Petek v. Petek

• Decision Date: 05 May 1997
• Citation: 239 A.D.2d 327,657 N.Y.S.2d 738
• Parties: Lisa Ames PETEK, Plaintiff-Appellant, v. Bojan PETEK, Respondent; Judith R. Richman, nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

Page 738

657 N.Y.S.2d 738

239 A.D.2d 327

Lisa Ames PETEK, Plaintiff-Appellant, v. Bojan PETEK, Respondent Judith R. Richman, nonparty Appellant.

Supreme Court, Appellate Division Second Department.

May 5, 1997.

Sonnenfeld & Richman, New York City (Judith R. Richman, nonparty appellant pro se, of counsel), and Ronald L. Ginns, New York City, for plaintiff-appellant Lisa Ames Petek and nonparty appellant Judith R. Richman (one brief filed).

John M. Ruti, Mount Kisco, for respondent.

Michele L. Bermel, Chappaqua, Law Guardian for the child.

Before BRACKEN, J.P., and COPERTINO, ANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals (1) from an order of the Supreme Court, Westchester County (Donovan, J.), entered February 15, 1996, which denied her motion pursuant toCPLR 4404 to set aside those portions of the court's posttrial decisions which dealt with custody, maintenance, and child support issues, and (2) as limited by her brief, from so much of a judgment of the same court, entered January 18, 1996, as (a) awarded sole custody of the parties' infant son to the defendant father, (b) imputed $30,000 in annual income to the plaintiff and directed the plaintiff make payments to the defendant for child support based on that figure, (c) modified downward the defendant's pendente lite support obligation and awarded him retroactive credit for the amount overpaid, (d) ordered the plaintiff to bear 80% of the fee of the court-appointed Law Guardian, including 80% of a $5,000 retainer for services to be rendered in the future, (e) ordered the plaintiff to pay $30,000 in counsel fees to the defendant, and (f) ordered the plaintiff and the defendant to bear equally the fee of the court-appointed forensic expert; and the plaintiff's counsel, Judith R. Richman, separately appeals from an order of the same court, entered December 5, 1995, which imposed sanctions upon her in the amount of $700.

ORDERED that the appeal from the order entered February 15, 1996, is dismissed, without costs or disbursements, as no appeal lies from an order which decides a motion to set aside a decision (see, McComish v. McComish, 227 A.D.2d 454, 642 N.Y.S.2d 921); and it is further,

ORDERED that the order entered December 5, 1995, is affirmed, without costs or disbursements; and it is further,

ORDERED that the judgment entered January 18, 1996, is modified, on the law, by deleting the 10th, 11th, 15th, 18th, 22nd, and 26th decretal paragraphs thereof; 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 hearing in accordance herewith.

The trial court properly determined that, in light of the totality of the circumstances, the best interests of the parties' child were served by awarding custody to the defendant (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Fanelli v. Fanelli, 215 A.D.2d 718, 719, 627 N.Y.S.2d 425). This determination, like any custody determination, turned in large part upon the trial court's assessment of the credibility, character, temperament, and sincerity of the trial witnesses and the parties (see, Fanelli v. Fanelli, supra). Where the trial court has conducted a full evidentiary hearing on the issue of the child's best interests, the resultant findings are to be accorded great weight and are not to be set aside lightly on appeal (see, Ira K. v. Frances K., 115 A.D.2d 699, 497 N.Y.S.2d 685). Moreover, the trial court did not improvidently exercise its discretion in limiting the plaintiff's rebuttal case where the proposed testimony was redundant and could have been presented during her direct case (see, Matter of Scheriff v. Scheriff, 221 A.D.2d 450, 451, 633 N.Y.S.2d 560).

The court did err, however, in calculating the plaintiff's child support obligation based on an imputed income of $30,000 per year. While it is well settled that a court may determine a child support obligation on the basis of a party's earning potential, rather than the party's current economic situation (see, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310; Kay v. Kay, 37 N.Y.2d 632, 637, 376 N.Y.S.2d 443, 339 N.E.2d 143; Carr v. Carr, 171 A.D.2d 776, 777, 567 N.Y.S.2d 495; Gunn v. Gunn, 143 A.D.2d 393, 395, 532 N.Y.S.2d 556), the calculation of the party's earning potential must have some basis in law and fact (see, ...