Torgersen v. Torgersen

• Decision Date: 30 December 1992
• Docket Number: No. 1,1
• Parties: I. Janet TORGERSEN, Appellant, v. Donald TORGERSEN, Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 539

592 N.Y.S.2d 539

188 A.D.2d 1023

I. Janet TORGERSEN, Appellant, v. Donald TORGERSEN, Respondent. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 30, 1992.

Roy Carlisi by Michael Iacono, Buffalo, for appellant.

David Craig Laub, Buffalo, for respondent.

Before BOOMER, J.P., and GREEN, BALIO, BOEHM and FALLON, JJ.

MEMORANDUM:

Supreme Court granted plaintiff a divorce on the ground of cruel and inhuman treatment, made a distribution of the marital assets, granted custody of the parties' infant son to plaintiff and ordered defendant to pay maintenance, child support and plaintiff's attorney's fees in the amount of $8,000. We affirm.

There is no merit to plaintiff's contention that the distribution of marital assets was inequitable. Supreme Court has great flexibility in fashioning an equitable distribution of marital assets (see, Domestic Relations Law § 236[B]; O'Brien v. O'Brien, 66 N.Y.2d 576, 588, 498 N.Y.S.2d 743, 489 N.E.2d 712; Michalek v. Michalek, 114 A.D.2d 655, 656, 494 N.Y.S.2d 487, lv. denied 69 N.Y.2d 602, 512 N.Y.S.2d 1025, 504 N.E.2d 395; Rodgers v. Rodgers, 98 A.D.2d 386, 391, 470 N.Y.S.2d 401). The court's distribution was approximately equal, with plaintiff also receiving a present cash payment. In making that distribution, the court properly reflected the individual needs and circumstances of the parties (see, Urtis v. Urtis, 181 A.D.2d 1001, 1004, 581 N.Y.S.2d 947; Coffey v. Coffey, 119 A.D.2d 620, 622, 501 N.Y.S.2d 74; see also, Reina v. Reina, 153 A.D.2d 775, 777, 544 N.Y.S.2d 895). Plaintiff's emphasis upon certain elements of the distribution as being unfair does not take into consideration that a marital distribution award should be examined in its entirety rather than analyzed item by item (see, Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58; Urtis v. Urtis, supra, 181 A.D.2d at 1003-1004, 581 N.Y.S.2d 947; Reina v. Reina, supra; Coffey v. Coffey, supra ).

Equally unavailing is plaintiff's contention that the court's order of maintenance was inadequate. Questions of maintenance are addressed to the sound discretion of the trial court (see, Domestic Relations Law § 236[B][6]; Majauskas v. Majauskas, 61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 N.E.2d 15; Pacifico v. Pacifico, 101 A.D.2d 709, 710, 475 N.Y.S.2d 952). The court's award of maintenance reflects an appropriate balancing of plaintiff's needs and defendant's ability to pay.

In making its award of child support, the court should have made the preliminary calculation of basic child support (see, Domestic Relations Law § 240[1-b][a], [c]. We need not remit, however, as the record adequately sets forth the financial information necessary for us to determine whether Supreme Court's provision for child support comported with the Child Support Standards Act. We note that in 1990 the parties' gross income, earned entirely by defendant, was $236,126 (see, Domestic Relations Law § 240[1-b][b][5][i]. To arrive at the combined parental income, Federal Insurance Contributions Act taxes paid of $3,924 and maintenance of $34,500 must first be subtracted from the gross income, leaving a balance of $197,702 (see, Domestic Relations Law § 240[1-b][b][5][vii]. Because the support at issue is for one child, the applicable percentage is 17% (see, Domestic Relations Law § 240[1-b][b][3][i]. Seventeen percent of the first $80,000 is $13,600 per year, and seventeen percent of the combined parental income is $33,609 (see, Domestic Relations Law § 240[1-b][c][2], [3]. Until the marital residence is sold, defendant is obligated to pay $750 per month in direct child support plus the expenses for the marital residence, which total at least $90,000 per year. If the expenses of the marital residence are considered as a part of the child support obligation (see, Lenigan v. Lenigan, 159 A.D.2d 108, 112, 558 N.Y.S.2d 727), respondent's yearly obligation, at least $99,000, exceeds that mandated by the statute. Once the marital residence is sold, and assuming a steady level of income, the combined parental income will range from $180,202 to $164,202. Child support based upon those figures would range from $30,634 to $27,914. The court directed defendant to pay child support of $14,000 per year, approximately 17% of the usual statutory cap of $80,000, increasing to $18,000 in the child's eighteenth year and to contribute his one-half interest in a retirement fund, $8,124, to a college fund for the child.

The court's failure to calculate the basic child support obligation based upon the combined parental income does not render the court's support order unjust or inappropriate. The court determined that it would be more appropriate to fix defendant's child support obligation in accordance with the discretion given to the court by the statute, and it set forth the factors that it considered in arriving at that conclusion (see, Domestic Relations Law § 240[1-b][f][1], [3], [4], [5], [7], [10]; [g]. The record fully...