Fein v. Fein

Appellate Division of the Supreme Court of New York

Fein v. Fein

113 A.D.3d 647, 979 N.Y.2d 125

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

DecidedJanuary 15, 2014

StatusPublished

This text of 113 A.D.3d 647 (Fein v. Fein) 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

Fein v. Fein, 113 A.D.3d 647, 979 N.Y.2d 125 (N.Y. Ct. App. 2014).

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Opinion

The parties were married in 1993 and have three children, born in 1994, 1996, and 1998, respectively. The plaintiff worked as a trader in the financial industry before losing his job in late 2009, and the defendant stayed at home with the children. The plaintiff commenced this action for a divorce and ancillary relief in March 2009, and the matter proceeded to a nonjury trial in June 2011.

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion in imputing to the plaintiff an annual income of only $125,000 for the purpose of calculating child support, given the plaintiffs current employment situation, his future earning capacity, and the evidence presented relating to additional streams of income (see Haagen-Islami v Islami, 96 AD3d 1004 [2012]). In addition, the court properly imputed an annual income of $65,000 to the defendant (see Domestic Relations Law § 240 [1-b] [b] [5] [iv] [D]).

Contrary to the defendant’s further contention, the Supreme Court’s determination to calculate the parties’ child support obligations based on the $130,000 statutory cap is adequately supported by the record, and was not an improvident exercise of discretion (see generally Matter of Cassano v Cassano, 85 NY2d 649 [1995]; Iarocci v Iarocci, 98 AD3d 999 [2012]).

We also reject the defendant’s contention that the amount and duration of the maintenance award was inadequate. “[T]he [648]*648amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Wortman v Wortman, 11 AD3d 604, 606 [2004]). Here, under the totality of the circumstances, including the fact that the defendant is college educated and capable of seeking employment, the Supreme Court’s award of maintenance in the sum of $346.15 per week for three years is adequate in amount and duration (see Groesbeck v Groesbeck, 51 AD3d 722 [2008]).

The defendant’s remaining contentions are without merit. Mastro, J.P., Leventhal, Austin and Sgroi, JJ., concur.

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The parties were married in 1993 and have three children, born in 1994, 1996, and 1998, respectively. The plaintiff worked as a trader in the financial industry before losing his job in late 2009, and the defendant stayed at home with the children. The plaintiff commenced this action for a divorce and ancillary relief in March 2009, and the matter proceeded to a nonjury trial in June 2011.

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion in imputing to the plaintiff an annual income of only $125,000 for the purpose of calculating child support, given the plaintiffs current employment situation, his future earning capacity, and the evidence presented relating to additional streams of income (see Haagen-Islami v Islami, 96 AD3d 1004 [2012]). In addition, the court properly imputed an annual income of $65,000 to the defendant (see Domestic Relations Law § 240 [1-b] [b] [5] [iv] [D]).

Contrary to the defendant’s further contention, the Supreme Court’s determination to calculate the parties’ child support obligations based on the $130,000 statutory cap is adequately supported by the record, and was not an improvident exercise of discretion (see generally Matter of Cassano v Cassano, 85 NY2d 649 [1995]; Iarocci v Iarocci, 98 AD3d 999 [2012]).

We also reject the defendant’s contention that the amount and duration of the maintenance award was inadequate. “[T]he [648]*648amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Wortman v Wortman, 11 AD3d 604, 606 [2004]). Here, under the totality of the circumstances, including the fact that the defendant is college educated and capable of seeking employment, the Supreme Court’s award of maintenance in the sum of $346.15 per week for three years is adequate in amount and duration (see Groesbeck v Groesbeck, 51 AD3d 722 [2008]).

The defendant’s remaining contentions are without merit. Mastro, J.P., Leventhal, Austin and Sgroi, JJ., concur.

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Bluebook (online)

113 A.D.3d 647, 979 N.Y.2d 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fein-v-fein-nyappdiv-2014.

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