Polychronopoulos v. Polychronopoulos

• Decision Date: 01 April 1996
• Citation: Polychronopoulos v. Polychronopoulos, 226 A.D.2d 354, 640 N.Y.S.2d 256 (N.Y. App. Div. 1996)
• Parties: Joanna POLYCHRONOPOULOS, Respondent-Appellant, v. George POLYCHRONOPOULOS, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 256

640 N.Y.S.2d 256

226 A.D.2d 354

Joanna POLYCHRONOPOULOS, Respondent-Appellant, v.George POLYCHRONOPOULOS, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1996.

Carl G. Cohen, Carle Place, for appellant-respondent.

Ben Carter, Riverhead, for respondent-appellant.

Before BALLETTA, J.P., and JOY, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Suffolk County(Mellan, J.H.O.), dated December 21, 1993, which, inter alia, directed him to pay child support in the amount of $300 per week for the couple's two infant children, awarded sole custody of the children to the plaintiff, directed him to pay $100 per week in maintenance to the plaintiff until November 22, 1998, awarded the plaintiff exclusive occupancy of the marital residence and directed him to pay all mortgage payments and carrying charges on the residence, awarded each party a 50% interest in the marital residence, awarded the plaintiff a 50% interest in the increased value in the defendant's restaurant, and awarded the plaintiff $20,000 in attorney's fees, and the plaintiff cross-appeals, as limited by her brief, from stated portions of the order and judgment which, inter alia, denied her application for equitable distribution of an interest in the increased value of the defendant's separate land, and denied her application for expert's fees.

ORDERED that the order and judgment is modified by deleting the fourth, fifth, sixth, and thirteenth decretal paragraphs thereof and deleting so much of the eighteenth decretal paragraph as denied the plaintiff's application for expert's fees; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith; and it is further,

ORDERED that in the interim, the decision and order on motion of this court, dated February 8, 1994, which, inter alia, continued the decretal provisions contained in an order to show cause issued on or about January 20, 1994, shall remain in full force and effect.

In calculating the defendant's child support obligations, the court stated that it deviated from the statutory guidelines because the defendant would be paying the medical expenses of the children and the carrying charges on the marital home.In making its calculations, the court granted a deduction of $22,600 for "FICA and so forth" in "allowable deductions".However, the mortgage payments on the marital residence exceed $29,000 per year, and the defendant was ordered to pay all additional carrying charges on the home, which amounts were unspecified.Since these obligations represent shelter costs, which are part of the basic child support obligation, they should have reduced the defendant's child support obligations accordingly.

The court's deductions for FICA and other "allowable deductions " do not explain why the defendant is being charged more than his statutory share for child support.Thus, it is incumbent upon the trial court to recalculate the defendant's child support obligation, giving him credit for the mortgage costs and carrying charges or to articulate its reasons for the child support ordered (see, Domestic Relations Law § 240[1-b][f], [g];Krantz v. Krantz, 175 A.D.2d 865, 573 N.Y.S.2d 738;Ryan v. Ryan, 186 A.D.2d 245, 246, 588 N.Y.S.2d 341;Lenigan v. Lenigan, 159 A.D.2d 108, 558 N.Y.S.2d 727).Additionally, in recalculating the child support, the trial court should reduce the defendant's income by the amount of maintenance paid to the...