Wesche v. Wesche

Decision Date26 October 2010
Citation909 N.Y.S.2d 764,77 A.D.3d 921
PartiesDawn J. WESCHE, respondent, v. Edward WESCHE, appellant.
CourtNew York Supreme Court — Appellate Division

James D. Reddy, P.C., Lindenhurst, N.Y., for appellant.

Foster, Vandenburgh & Riyaz, LLP, Riverhead, N.Y. (Frederic C. Foster and Erik C. Howard of counsel), for respondent.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Cohen, J.), entered May 13, 2009, as, upon a decision of the same court dated October 24, 2008, and an order of the same court dated February 13, 2009, modifying the decision, made after a nonjury trial, directed him to pay the plaintiff the sum of $1,000 per month inmaintenance from the date of the commencement of the action until November 1, 2010, and thereafter pay the plaintiff the sums of $750 per month until November 1, 2012, and $500 per month until November 1, 2013, directed the plaintiff to pay him the sum of only $188.91 per week in child support, directed him to pay the plaintiff the sum of $395,000 as her share in his funeral home business, directed him to pay 90% of the fee for a forensic accountant, and directed him to pay $35,000 as a fee for the plaintiff's attorney.

ORDERED that the judgment is modified, on the law, by adding thereto a provision terminating the defendant's maintenance obligations upon the death of either party or the plaintiff's remarriage; as so modified, the judgment is affirmed insofar as appealed from, with costs.

The plaintiff, Dawn J. Wesche, and the defendant, Edward Wesche, were married on December 29, 1984. In 1989, the defendantwent into business with a partner to buy a funeral home in Suffolk County. The plaintiff operated a separate business which provided headstones, and she ran a small karaoke business. The plaintiff commenced this action for divorce in March 2004. The parties had two unemancipated children at the time the action was commenced.

Before the trial, the parties stipulated that the total value of the defendant's interest in the funeral home business was $760,000. At trial, the plaintiff testified that the defendant had attempted to conceal his income when his ex-wife had moved for an increase in child support for his son from his previous marriage. A forensic accountant testified that the defendant admitted that he received approximately $25,000 in unreported annual income.

In its decision after trial dated October 24, 2008, the Supreme Court imputed an additional $5,000 per year as income to the defendant for personal car expenses paid for by the funeral home. The Supreme Court further imputed the additional sums of $18,000 as annual income to the defendant based upon for cash received from the funeral home and used for personal expenses and $19,500 for undistributed earnings of the funeral home. Regarding maintenance, the Supreme Court directed the defendant to pay the plaintiff, beginning on November 1, 2008, the sums of $1,000 per month for the first two years, $750 per month for the next two years, and $500 per month until November 1, 2013. The plaintiff moved to modify the decision so that the maintenance award would be retroactive to the date of her initial application therefor. In an order dated February 13, 2009, the Supreme Court granted the plaintiff's motion.

In a judgment entered May 13, 2009, the Supreme Court directed the defendant to pay the plaintiff the sums of $1,000 per month in maintenance from the date of the commencement of the action until November 1, 2010, $750 per month until November 1, 2012, and $500 per month until November 1, 2013. The plaintiff was directed to pay child support in the sum of $188.91 per week. The Supreme Court directed that the defendant pay 90% of the fee for the forensic accountant, and awarded the plaintiff $35,000 as an attorney's fee payable by the defendant. The defendant appeals.

The defendant argues on...

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31 cases
  • Mojdeh M. v. Jamshid A.
    • United States
    • New York Supreme Court
    • July 4, 2012
    ...employment history, future earning capacity, educational background, or money received from friends and relatives' (Wesche v. Wesche, 77 A.D.3d 921, 923, 909 N.Y.S.2d 764). “Where a party's account is not believable, the court may impute a true or potential income higher than alleged” ( Id.......
  • Carney v. Carney
    • United States
    • New York Supreme Court
    • October 4, 2016
    ...two appellate division decisions that sanction an imputation of income to a party in a matrimonial matter. In Wesche v. Wesche, 77 A.D.3d 921, 909 N.Y.S.2d 764 (2nd Dept.2010), the court held that trial courts may impute income based upon the party's past income or demonstrated future poten......
  • Sufia v. Khalique
    • United States
    • New York Supreme Court — Appellate Division
    • December 23, 2020
    ...). "Where a party's account is not believable, the court may impute a true or potential income higher than alleged" ( Wesche v. Wesche, 77 A.D.3d 921, 923, 909 N.Y.S.2d 764 ). " ‘The factfinder's determination concerning the imputation of income to an obligor spouse is almost always based o......
  • Klein v. Klein
    • United States
    • New York Supreme Court — Appellate Division
    • December 11, 2019
    ...earnings" ( Duffy v. Duffy , 84 A.D.3d 1151, 1151–1152, 924 N.Y.S.2d 449 [internal quotation marks omitted]; see Wesche v. Wesche , 77 A.D.3d 921, 923, 909 N.Y.S.2d 764 ; Steinberg v. Steinberg , 59 A.D.3d 702, 705, 874 N.Y.S.2d 230 ). "The court may impute income to a party based on his or......
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