Polite v. Polite

• Decision Date: 05 February 1987
• Citation: 127 A.D.2d 465,511 N.Y.S.2d 275
• Parties: Ozie POLITE, Petitioner-Respondent-Appellant, v. Robert POLITE, Respondent-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 275

511 N.Y.S.2d 275

127 A.D.2d 465

Ozie POLITE, Petitioner-Respondent-Appellant, v. Robert POLITE, Respondent-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 5, 1987.

D.D. Olman, New York City, for petitioner-respondent-appellant.

S.L. Bender, White Plains, for respondent-appellant-respondent.

Before SANDLER, J.P., and KASSAL, ROSENBERGER and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Family Court, New York County (Mortimer Getzels, J.), entered December 9, 1985, directing respondent Robert Polite to pay weekly child support of $275, plus $25 per week for arrears, awarded petitioner $2500 counsel fees and denied her request for support, unanimously modified, on the law and on the facts, only to the extent of granting petitioner's application for her support and directing respondent to pay her weekly support of $100, and otherwise affirmed, without costs or disbursements.

The parties were married on July 9, 1977. They have one daughter, Christianna, born June 6, 1978. After separating in July 1984, petitioner brought this proceeding to obtain support for herself and her child and an order of protection.

Respondent had been a licensed chief engineer in the Merchant Marine for 15 years. Although qualified on both steam and diesel powered ships, he sailed only as a first, second or third engineer and his adjusted gross income was $73,301.36 in 1980, $97,862.44 in 1981, $85,382.50 in 1982, $107,718.14 in 1983 and $51,377 in 1984. He held a permanent position as engineer on Trinidad Oil Company vessels from 1979 to 1983, but was terminated because of fleet reductions. For a one year period, from July 1983 to July 1984, he was employed as a stationary engineer and as a teacher and, thereafter, until October 1984, he had a temporary job as a first assistant engineer on a merchant vessel. In April 1985, he obtained a permanent position as a third assistant engineer, but was terminated one month later on a charge that he had damaged equipment. His grievance claim for unjust discharge was pending as of the date of the Family Court hearing. Since his termination, he has been living in San Diego, California and has had only occasional port relief work, collected unemployment insurance benefits and was looking for nonmaritime work.

Petitioner, 35 years of age, has a BA degree in sociology. Prior to their separation, respondent contributed $3000-4000 per month to cover her living expenses and tuition for Christianna, who has a learning disability and emotional problems. During the six month period after they separated, petitioner received a total of $16,800 from respondent. Since October 1984, she and the child have resided with her mother and she has been, and is currently, looking for employment, having mailed about 45 resumes and gone on 25 job interviews. Her only employment was with Willoughby's for 2 1/2 months at a salary of $160 per week, but she quit when she was denied commissions. It is conceded that her weekly expenses are $428 and those of the child are $305.89.

We agree with the determination of the Family Court, awarding child support of $275 per week, which was arrived at by apportioning the costs of support between the father and the mother in accordance with their respective means and responsibilities (Family Court Act § 413; Sementilli v. Sementilli, 102 A.D.2d 78, 84-85, 447 N.Y.S.2d 626; Matter of Miller v. Miller, 61 A.D.2d 774, 402 N.Y.S.2d 202; Tessler v. Siegel, 59 A.D.2d 846, 399 N.Y.S.2d 218). Family Court Act § 413 sets forth the factors to be considered in fixing "a fair and reasonable sum according to their respective means", including each parent's ability to earn such means. Thus, the statute requires the court to apportion responsibility in accordance with each parent's earning capacity and potential, albeit that capacity or potential may differ from his or her current economic situation (see, Hickland v. Hickland, 39 N.Y.2d 1, 5, 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; Matter of Chenango County Support Collection Unit v. De Brie, 100 A.D.2d 687, 688, 473 N.Y.S.2d 890; Matter of Doscher v. Doscher, 80 A.D.2d 945, 438 N.Y.S.2d 28; Matter of Garfield v. Garfield, 29 A.D.2d 928, 289 N.Y.S.2d 237).

The Family Court determined respondent's earning capacity to be $80,000 per year, which was more than his earnings at the time of the hearing, but less than prior years, and petitioner's earning ability to be $10,000 per year, apportioning the support obligation in a ratio of 10% to petitioner and 90% to respondent. On this record, we agree with that apportionment in fixing the "fair and reasonable sum" for child support in accordance with each parent's means (cf., Matter of...