Rosenberg v. Rosenberg

• Decision Date: 28 December 2016
• Parties: Virginia ROSENBERG, respondent, v. Robert ROSENBERG, appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1052

44 N.Y.S.3d 489

2016 N.Y. Slip Op. 08893

Virginia ROSENBERG, respondent,

v.Robert ROSENBERG, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 28, 2016.

Alexander Potruch, LLC, Garden City, NY, for appellant.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Daniel R. Palmieri, J.), dated August 21, 2014. The judgment of divorce, upon a decision of that court dated January 25, 2012, made after a nonjury trial on the issue of custody, and upon a decision of that court dated June 25, 2013, made after a nonjury trial on the issues of, inter alia, equitable distribution and child support, and upon an order of that court dated July 24, 2013, granting, in part, the plaintiff's application for attorneys' fees, among other things, awarded sole custody of the parties' children to the plaintiff, made an equitable distribution of the parties' marital assets, directed the defendant to pay child support in the sum of $2,182 per month, directed that the defendant is solely responsible for repaying the balance of a home equity line of credit, and directed the defendant to pay a certain attorney's fee in the sum of $128,741.86.

ORDERED that the judgment of divorce is modified, on the facts and in the exercise of discretion, (1) by adding a provision thereto crediting the defendant in the sum of $41,000, representing his equitable share of the equity in the marital home, (2) by deleting the provision thereof directing that the defendant is solely responsible for repaying the balance of the home equity line of credit, and substituting therefor a provision directing that the parties are equally responsible for repaying the balance of the home equity line of credit, and (3) by deleting the provision thereof directing the defendant to pay a certain attorney's fee in the sum of $128,741.86, and substituting therefor a provision directing the defendant to pay the sum of $80,000 for that attorney's fee; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the order dated July 24, 2013, is modified accordingly.

The parties were married on January 30, 2003, and have two children together. In 2009, the parties separated, and the defendant moved out of the marital residence. The children continued to live with the plaintiff in the marital residence. In October 2009, the plaintiff commenced this action for a divorce and ancillary relief. In 2012, the Supreme Court conducted a nonjury trial on the issue of custody, and found that the plaintiff should be awarded sole custody of the children.

Thereafter, the court conducted a separate nonjury trial, inter alia, on the issues of equitable distribution and child support. In an order dated July 24, 2013, the Supreme Court granted, in part, the plaintiff's application for attorneys' fees. A judgment of divorce was issued on August 21, 2014. The defendant appeals from stated portions of the judgment.

Contrary to the defendant's contention, the Supreme Court properly awarded sole custody of the children to the plaintiff. The essential consideration in making an award of custody is the best interests of the children (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). " ‘In making an initial custody determination, the courts must consider the best interests of the child by reviewing such factors as maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent’ " (Jin C. v. Juliana L., 137 A.D.3d 1061, 1062, 27 N.Y.S.3d 675, quoting Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96 [internal quotation marks omitted] ). Here, the Supreme Court's determination to award sole custody of the children to the plaintiff has a sound and substantial basis in the record and will not be disturbed (see Jin C. v. Juliana L., 137 A.D.3d at 1063, 27 N.Y.S.3d 675 ).

Contrary to the defendant's contention, the Supreme Court's determination on the issue of child support is supported by the record. " ‘A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed’ " (Elsayed v. Edrees, 141 A.D.3d 503, 505, 35 N.Y.S.3d 411, quoting Matter of Thomas v. DeFalco, 270 A.D.2d 277, 278, 703 N.Y.S.2d 530 ). " ‘This is particularly true when ... the record supports a finding that the appellant's reported income on his [or her] tax return is suspect’ " (Matter of Maharaj–Ellis v. Laroche, 54 A.D.3d 677, 677, 863 N.Y.S.2d 258, quoting Matter of Westenberger v. Westenberger, 23 A.D.3d 571, 571, 806 N.Y.S.2d 665 ). Here, the court's imputation of income to both the plaintiff and the defendant was a provident exercise of discretion (see Elsayed v. Edrees, 141 A.D.3d at 505, 35 N.Y.S.3d 411; Taylor v. Taylor, 140 A.D.3d 944, 947, 34 N.Y.S.3d 127 ).

Contrary to the defendant's contention, the Supreme Court properly determined that a boat acquired during the marriage was marital property. "Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" (Bernard v. Bernard, 126 A.D.3d...