Smith v. Smith, 94010.

• Decision Date: 26 November 2003
• Docket Number: 94010.
• Citation: 2003 NY Slip Op 18973,1 A.D.3d 870,769 N.Y.S.2d 306
• Parties: PAUL D. SMITH, Appellant-Respondent, v. LORI A. SMITH, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 870

769 N.Y.S.2d 306

2003 NY Slip Op 18973

PAUL D. SMITH, Appellant-Respondent, v. LORI A. SMITH, Respondent-Appellant.

94010.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 26, 2003.

Cross appeals from a judgment of the Supreme Court (Kavanagh, J.), entered November 18, 2002 in Ulster County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court.

Carpinello, J.

Plaintiff, a licensed veterinarian, and defendant, a licensed dental hygienist but full-time homemaker, were married in 1990 and have four children ranging in age from three to eight years old. The parties stipulated to the grounds for divorce and custody of the children, and a nonjury trial was held on the issues of maintenance, child support and equitable distribution of their marital assets. In its decision on these contested issues, Supreme Court credited the testimony of plaintiff's own expert that plaintiff had underreported the income of his veterinary practice and attributed to him an income of $160,000 per year. The court calculated his child support obligation by applying the statutory child support percentage to this entire figure. The court also ordered him to pay $3,000 per month maintenance for six years and to pay one half of the children's private school expenses. In addition, the court distributed the parties' marital assets by awarding defendant one third of the value of the veterinary practice and its associated real estate, and by awarding each party one half of the equity in the marital residence and one third of the enhanced earnings attributable to the other's professional license. It further directed that plaintiff retain his veterinary practice and its real estate, with defendant retaining the marital residence and associated personal property. The parties now cross-appeal from the resulting judgment.

Initially, defendant contends that Supreme Court erred in fashioning its equitable distribution award because it failed to make a monetary distributive award to effectuate its overall distribution of the marital assets. In its decision, the court determined the value of the parties' various marital assets, awarded plaintiff shares of each asset totaling $695,166 and awarded defendant shares of assets totaling $422,833. However, the court also directed that plaintiff retain assets valued at $874,000 and that defendant retain assets valued at $244,000. As a result, there is a $178,833 disparity between the court's overall distribution of the marital assets and the assets actually retained by the parties. The court did not make a monetary distributive award to correct this imbalance, but did award defendant unspecified personal property "to off-set" her share of plaintiff's retained assets and, in addition, ordered plaintiff to assume numerous debts. However, the court did not make specific factual findings as to the value of the personal property awarded to defendant or as to the amount of marital debt to be borne by plaintiff, and there is insufficient evidence in this record from which such information can be discerned. As a consequence, it is unclear as to whether the court, in fact, intended the personal property and assumption of debt to be a full offset for this seeming imbalance in an otherwise well-crafted distribution of the marital assets. Accordingly, we remit for clarification (see Gaglio v Molnar-Gaglio, 300 AD2d 934, 938-939 [2002]; Woertler v Woertler, 110 AD2d 947, 949 [1985]).

Next, we see no error in Supreme Court's determination to impute income to plaintiff. Plaintiff's own accountant testified at trial that he had underreported the income of his veterinary practice in prior years and the practice had paid some of his personal expenses. Income may properly be imputed under such circumstances (see Askew v Askew, 268 AD2d 635, 636 [2000]; Matter of Klein v Klein, 251 AD2d 733, 735 [1998]), and we see no abuse of discretion here.

Turning to Supreme Court's maintenance award, we reject each parties' challenges to the amount and duration of the award. Determinations as to the amount and duration of maintenance awards are vested in the court's discretion (see Gaglio v Molnar-Gaglio, supra at 939), and we find no basis to disagree with Supreme Court. The court properly considered the requisite factors, including the substantial disparity in the parties' incomes, the parties' standard of living during the marriage, the duration of the marriage and the ages of the parties' children (see Domestic Relations Law § 236 [B] [6] [a]). Among plaintiff's contentions is his claim that the court based its six-year award on an erroneous finding that the youngest child would begin school in six years. He thus seeks to have his maintenance obligation end when that child begins school in two years. However, this was but one factor in the court's deliberations and, in light of the young ages of the parties' four children, we cannot say that the six-year window for defendant to become self-sufficient or the amount of the award is overly generous (see Moschetti v Moschetti, 277 AD2d 838, 839 [2000]; Love v Love, 250 AD2d 739, 740 [1998]).

Nor do we find error in Supreme Court's application of the child support percentage to plaintiff's income in excess of $80,000. Because the parties' combined parental income exceeds $80,000, the court was required to determine...