Tsoucalas v. Tsoucalas

• Decision Date: 02 May 1988
• Citation: 140 A.D.2d 333,527 N.Y.S.2d 828
• Court: New York Supreme Court — Appellate Division
• Parties: Donna V. TSOUCALAS, Respondent, v. Nicholas W. TSOUCALAS, Appellant.

Page 828

527 N.Y.S.2d 828

140 A.D.2d 333

Donna V. TSOUCALAS, Respondent, v. Nicholas W. TSOUCALAS, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 2, 1988.

Vincent A. Malito, Lindenhurst, for appellant.

Cohen & Warren, P.C., Smithtown (Michael F. Cohen, on the brief), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Abrams, J.), entered May 27, 1986, which, inter alia, awarded the plaintiff with sole custody of the parties' son, awarded the plaintiff $110 per week in child support, and awarded the plaintiff 50% of the proceeds from the sale of the marital residence, after a nonjury trial.

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

The parties were married on April 14, 1973, and have one son, William, born July 16, 1978, who suffers from a seizure disorder. The defendant is employed as a cook-manager in his family's business, a diner and catering operation. He has worked in the diner seven days a week, including 24-hour weekend shifts, earning $275 gross per week since the beginning of the marriage. The plaintiff worked in the diner in various capacities on an average of nine to 10 hours a day six days per week for 11 years. She was paid no salary but was given money by the defendant when she requested it for groceries and other necessities. She is currently employed as a bank teller with a take-home pay of about $160 per week.

The trial court found the defendant's "lack of candor was almost Olympian in scope". Discrepancies existed between his income as stated on corporate income tax returns and individual income tax returns for several years. According to the defendant's statements concerning the number of hours spent working at the diner and his gross salary, it was calculated that the defendant earned about three dollars per hour.

It is well settled that a proper award of child support is not necessarily based upon a parent's actual income but may be based upon his earning potential ( see, Kay v. Kay, 37 N.Y.2d 632, 637, 376 N.Y.S.2d 443, 339 N.E.2d 143; Matter of Moore v. Moore, 115 A.D.2d 894, 896, 496 N.Y.S.2d 583). The defendant, regardless of the actual amount of his take-home pay, has a far greater potential earning power as a restaurant cook-manager. The defendant, highly skilled and very experience certainly has the capacity to earn more than he presently alleges. The plaintiff does not receive maintenance and her take-home pay is barely adequate to provide for her own needs. Further, the plaintiff's worth in the job market was not enhanced by her 11-year unpaid tenure in the defendant's family's restaurant (see, ...