Heiny v. Heiny

74 A.D.3d 1284, 904 N.Y.S.2d 191
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 29, 2010
StatusPublished
Cited by18 cases

This text of 74 A.D.3d 1284 (Heiny v. Heiny) 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
Heiny v. Heiny, 74 A.D.3d 1284, 904 N.Y.S.2d 191 (N.Y. Ct. App. 2010).

Opinion

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Orange County (Giacomo, J.), entered August 4, 2008, as, after a nonjury trial on submitted facts, and upon an order of the same court dated November 3, 2006 (Horowitz, J.), inter alia, granting that branch of the motion of the defendant which was to reduce his maintenance obligation to the extent of directing him to pay maintenance in the sum of only $800 per month from November 2006 until December 2009, and upon an order of the same court (Giacomo, J.), dated June 3, 2008, among other things, stating that the defendant owed her arrears in the sum of $4,611.40 for the period from September 24, 2004, to May 16, 2007, directed him to pay child support in the sum of only $1,642 per month for the parties’ unemancipated child, and maintenance in the sum of only $800 per month commencing on November 3, 2006, until December 3, 2009, and adjudged that the defendant had paid to her the arrears stated to be owed by him in the order dated June 3, 2008.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof directing the defendant to pay child support in the sum of $1,642 per month for the parties’ unemancipated child, and substituting therefor a provision directing him to pay child support in the sum of $1,746 per month for the parties’ unemancipated child, (2) by deleting the provision thereof [1285]*1285directing the defendant to pay maintenance in the sum of $800 per month from November 3, 2006, until December 3, 2009, and substituting therefor a provision directing him to pay maintenance in the sum of $1,800 per month from November 3, 2006, until December 31, 2009, and (3), by deleting the provision thereof adjudging that the defendant had paid the plaintiff the arrears stated to be owed by him in the order dated June 3, 2008, for the period from September 24, 2004, to May 16, 2007, and substituting therefor a provision directing the defendant to pay arrears in the sum of $25,713.15 owing for the period from September 24, 2004, to October 31, 2006; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, the orders dated November 3, 2006, and June 3, 2008, are modified accordingly, and the matter is remitted to the Supreme Court, Orange County, for further proceedings consistent herewith, and the entry thereafter of an appropriate amended judgment.

The parties were married in 1982 and have three children, none of whom was emancipated at the time this action was commenced in September 2004.

Following a nonjury trial on submitted facts, the Supreme Court issued a decision dated May 9, 2006, in which it calculated child support using the sum of $120,000 as the defendant’s annual salary. In calculating child support, the court declined to include the defendant’s bonus in the sum of $31,035 (which the court referred to as the sum of $30,000) because of its “tentative nature and the lack of assurance that the Defendant will receive that amount each year.” The Supreme Court did not impute any income to the plaintiff, who, at the time, was not employed outside the home, having left the work force in 1986 to become a stay-at-home mother and homemaker. Upon applying the statutory percentage to the combined parental income in excess of $80,000, the Supreme Court fixed the defendant’s child support obligation at the sum of $2,350 per month for the two then-unemancipated children until November 1, 2006, at which time the second child would become emancipated and, thereafter, at the sum of $1,642 per month until the youngest child reached emancipation. No provision was made for the oldest child, who had become emancipated in January 2005.

In the same decision, the Supreme Court also fixed the defendant’s maintenance obligation at $1,800 per month through December 2014, and directed him to pay the children’s medical insurance premiums, 100% of the children’s unreimbursed medical expenses, and the high school and college tuition of the youngest child.

[1286]*1286The defendant thereafter moved, inter alia, to reduce his maintenance obligation. In an order dated November 3, 2006, the Supreme Court, among other things, granted that branch of the motion to the extent of directing the defendant to pay maintenance in the sum of only $800 per month from November 3, 2006, until December 3, 2009.

Thereafter, the plaintiff commenced an enforcement proceeding in the Family Court, seeking support and maintenance retroactive to the date of the commencement of the action. The matter was transferred to the Supreme Court, and the parties were directed to tender submissions as to whether the defendant should pay retroactive support and maintenance and, if so, whether the defendant owed arrears. In his affidavit, the defendant argued that he was entitled to a credit of $115,782.56 for the voluntary payments he made during the 26-month period from September 2004 through October 2006. Annexed to the defendant’s affidavit was a printout entitled Payments Made for Family Support for the Period September 2004-April 15, 2007. In an order dated June 3, 2008, the Supreme Court granted the plaintiffs request for support and maintenance retroactive to the commencement date of the action and, upon crediting the defendant with the sum of $115,782.56, determined that the plaintiff was entitled to arrears in the sum of $4,611.40.

On this appeal from the ensuing judgment, the plaintiff argues that the Supreme Court should have included the defendant’s bonus in calculating his child support obligation and that, in determining the maintenance award, the Supreme Court failed to consider, inter alia, the pre-divorce standard of living and her extended absence from the work force. The plaintiff also challenges the credit against arrears given to the defendant.

In reviewing a determination made after a nonjury trial, “the power of the Appellate Division ... is as broad as that of the trial court . . . and . . . as to a bench trial it may render the judgment it finds warranted by the facts” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; see Majauskas v Majauskas, 61 NY2d 481 [1984]; Boyle v Boyle, 44 AD3d 885 [2007]).

The Supreme Court’s determination to omit the defendant’s bonus and to reduce the amount of maintenance is unsupported by the record and an improvident exercise of discretion. We further find that the defendant was not entitled to a credit in the sum of $115,782.56. “Although certain nonrecurring income may be excluded in calculating the ongoing child support obligation of a noncustodial parent” (Mirkin v Mirkin, 43 AD3d 1115, [1287]*12871116 [2007]; see Domestic Relations Law § 240 [1-b] [e]), in this case, the record shows that the defendant, who was vice president of sales and marketing for an educational publishing company, received bonuses in 2003, 2004, and 2005, none of which was in any sum less than $24,000.

Under the Child Support Standards Act, income consists of, among other things, “gross (total) income as should have been or should be reported in the most recent federal income tax return” (Domestic Relations Law § 240 [1-b] [b] [5] [i]). Here, the annual bonus received by the defendant was consistently reported in earnings statements for the respective years and on his income tax returns.

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Cite This Page — Counsel Stack

Bluebook (online)
74 A.D.3d 1284, 904 N.Y.S.2d 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heiny-v-heiny-nyappdiv-2010.