Braine v. DeVito-Braine

Appellate Division of the Supreme Court of New York

Braine v. DeVito-Braine

290 A.D.2d 257, 736 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 151

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 8, 2002

StatusPublished

This text of 290 A.D.2d 257 (Braine v. DeVito-Braine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Braine v. DeVito-Braine, 290 A.D.2d 257, 736 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 151 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, New York County (Marylin Diamond, J.), entered July 11, 2000, which, insofar as appealed from, as limited by the briefs, directed plaintiff husband to pay defendant wife child support of $84.67 a week, unanimously affirmed, with costs.

A fair interpretation of the evidence supports the trial court’s finding, largely one of credibility, imputing to plaintiff $28,000 of yearly income (see, Thoreson v Penthouse Intl., 80 NY2d 490, 495). Such evidence includes plaintiff’s failure to produce any tax returns subsequent to 1990 although he admitted to paying estimated taxes, the lack of documentary corroboration for his testimony that he has been living off only his savings, the parties’ lifestyle, which includes a second home, and the testimony of plaintiff’s own family members concerning his skills and ability to earn a living notwithstanding the disabilities for which he receives Social Security benefits. Nor was it necessary for the trial court to explicitly state whether it was deviating from the child support guidelines of Domestic Relations Law § 240 (1-b), where the court made it clear that it was applying the standard 17% guideline. Insofar as plaintiff challenges the order entered on or about April 10, 2000, directing entry of a judgment against him for child support arrears, the appeal therefrom was dismissed by order of this Court dated May 17, 2001. We have considered and rejected plaintiff’s other arguments. Concur — Tom, J.P., Mazzarelli, Andrias, Ellerin and Marlow, JJ.

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Judgment, Supreme Court, New York County (Marylin Diamond, J.), entered July 11, 2000, which, insofar as appealed from, as limited by the briefs, directed plaintiff husband to pay defendant wife child support of $84.67 a week, unanimously affirmed, with costs.

A fair interpretation of the evidence supports the trial court’s finding, largely one of credibility, imputing to plaintiff $28,000 of yearly income (see, Thoreson v Penthouse Intl., 80 NY2d 490, 495). Such evidence includes plaintiff’s failure to produce any tax returns subsequent to 1990 although he admitted to paying estimated taxes, the lack of documentary corroboration for his testimony that he has been living off only his savings, the parties’ lifestyle, which includes a second home, and the testimony of plaintiff’s own family members concerning his skills and ability to earn a living notwithstanding the disabilities for which he receives Social Security benefits. Nor was it necessary for the trial court to explicitly state whether it was deviating from the child support guidelines of Domestic Relations Law § 240 (1-b), where the court made it clear that it was applying the standard 17% guideline. Insofar as plaintiff challenges the order entered on or about April 10, 2000, directing entry of a judgment against him for child support arrears, the appeal therefrom was dismissed by order of this Court dated May 17, 2001. We have considered and rejected plaintiff’s other arguments. Concur — Tom, J.P., Mazzarelli, Andrias, Ellerin and Marlow, JJ.

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Bluebook (online)

290 A.D.2d 257, 736 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braine-v-devito-braine-nyappdiv-2002.

Opinion

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