Samimi v. Samimi

• Decision Date: 23 December 2015
• Citation: 134 A.D.3d 1010,22 N.Y.S.3d 515
• Parties: Barbara SAMIMI, respondent, v. Sohrab SAMIMI, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1010

22 N.Y.S.3d 515

Barbara SAMIMI, respondent,

v.Sohrab SAMIMI, appellant.

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

Dec. 23, 2015.

Nathan Soufeh, Mineola, NY, for appellant.

Steven D. Kommor, Melville, NY, for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LASALLE, JJ.

Appeal from stated portions of a judgment of the Supreme Court, Nassau County (Margaret Reilly, J.), entered August 21, 2013. The judgment, inter alia, awarded the plaintiff monthly child support for the parties' three children in the sum of $2,378, title to the marital residence, spousal maintenance in the sum of $20,000 annually for a period of 7 years, and attorneys' fees in the sum of $50,000.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

"[I]n making any decision relative to equitable distribution, maintenance or child support, the court must set forth the factors that it considered and the reasons for its decision, ‘and such may not be waived by either party or counsel’ " (Otto v. Otto, 150 A.D.2d 57, 61, 545 N.Y.S.2d 321, quoting Domestic Relations Law §§ 236[B][5][g] ; [B][6] [b] ). "A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" (Schwartz v. Schwartz, 67 A.D.3d 989, 990, 890 N.Y.S.2d 71 [internal quotation marks and citations omitted] ). "Equitable distribution does not necessarily mean equal distribution" (Evans v. Evans, 57 A.D.3d 718, 719, 870 N.Y.S.2d 394 ). Here, in fashioning an equitable distribution award, the Supreme Court listed the statutory factors that shaped its determination and sufficiently detailed the rationale behind its award (seeDomestic Relations Law § 236[B][5][d] ; Evans v. Evans, 57 A.D.3d 718, 870 N.Y.S.2d 394 ; see generally Ruzicka v. Ruzicka, 31 A.D.3d 862, 817 N.Y.S.2d 770 ). While the Supreme Court misstated that the parties' 2008 tax return set forth that the defendant earned $80,000 and that the plaintiff had paid the health insurance premiums, the defendant ultimately failed to demonstrate that the court's distributive award was inequitable or that a different result was warranted.

As part of its equitable distribution determination, the Supreme Court, without elaborating on its specific reasoning, awarded the plaintiff title to the marital residence and awarded the defendant ownership of his computer consulting business. This Court, however, can make its own findings where the reasons for the Supreme Court's determination appear on the face of the record (see Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829 ; Majauskas v. Majauskas, 61 N.Y.2d 481, 493–494, 474 N.Y.S.2d 699, 463 N.E.2d 15 ). The record established that the defendant failed to cooperate with the valuation of the computer consulting business and failed to provide financial disclosure to the plaintiff as required. Furthermore, the gross earnings of the business for the years 2008 and 2009 totaled $142,791 and $172,345, respectively. The tax returns for 2008 and 2009 show that the business also took large tax deductions. The testimony of the parties also established that the parties and their children were sustained solely by the earnings of the business, including, but not limited to, the payment of the mortgage, taxes, utilities, the parties' automobiles, the children's extra-curricular activities, and family vacations. Moreover, the record established that the defendant failed to comply with court orders and mandated discovery. The defendant's testimony and evidence were also shown on several occasions to be less than credible. The record established that the plaintiff continues to reside in the marital residence with the parties' three children. In addition, the record showed that the marital residence, while valued at $615,000, was encumbered by a mortgage of $256,250 and property taxes totaled $14,000. Upon consideration of all of the relevant factors (see Domestic Relations Law § 236[B][5][d] ), the Supreme Court did not improvidently exercise its discretion in awarding the marital residence to the plaintiff and the computer consulting business to the defendant (see generally Bernholc v. Bornstein, 72 A.D.3d 625, 898 N.Y.S.2d 228 ; Farkas v. Farkas, 251 A.D.2d 4, 672 N.Y.S.2d 714, affd. 11 N.Y.3d 300, 869 N.Y.S.2d 380, 898 N.E.2d 563 ; Maharam v. Maharam, 245 A.D.2d 94, 666 N.Y.S.2d 129 ).

"A parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support" (Matter of Solis v. Marmolejos,

50 A.D.3d 691, 692, 855 N.Y.S.2d 584 [internal quotation marks and citations omitted] ). As such, "[t]he court is not bound by a party's actual reported income in applying the basic child support obligation, and instead could use that party's actual earning capacity or impute an amount onto the gross income reported by the party" (id. ). Here, the Supreme Court was permitted to impute income to the defendant in calculating his child support obligation for the parties' three children, since his account of his finances was not credible (see Matter of Barnett v. Ruotolo, 49 A.D.3d 640, 854 N.Y.S.2d 155 ). The defendant's testimony and financial documentation indicated incongruously that his annual income was only approximately one-third of his annual expenses, and no evidence was submitted to show that these expenses had not been paid in a timely manner (see id. ). In light of the testimony and evidence proffered at trial, the Supreme Court did not improvidently exercise its discretion in imputing income of $130,000 to the defendant in calculating his child support obligation.

"The amount and duration of maintenance is a matter committed to the sound...