Opinion
2012-11025, Index No. 200026/10.
10-15-2014
Kimberly FILIPPAZZO, appellant, v. Joseph FILIPPAZZO, respondent.
Newman & Denney, P.C., New York, N.Y. (Louis I. Newman of counsel), for appellant. Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Karen Bodner of counsel), for respondent.
Newman & Denney, P.C., New York, N.Y. (Louis I. Newman of counsel), for appellant.
Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Karen Bodner of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Opinion In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Bruno, J.), entered August 30, 2012, which, upon a decision of the same court dated March 21, 2012, after a nonjury trial, inter alia, determined that the marital residence was the defendant's separate property, failed to award her counsel fees and maintenance, and declined to impute additional income to the defendant for purposes of determining the defendant's child support obligation.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action for a divorce and ancillary relief against the defendant, and the matter proceeded to trial on the issues of, inter alia, equitable distribution, maintenance, child support, and counsel fees.
After trial, the Supreme Court properly determined that the marital residence was the defendant's separate property. The evidence demonstrated that the house, in which the defendant had grown up, was formerly owned by the defendant's father, and that the defendant's father transferred it solely to the defendant for no consideration. Accordingly, the defendant established that the marital residence was a “gift from a party other than the spouse” and was, therefore, his separate property (Domestic Relations Law § 236[B][1] [d] [1] ; see Hymowitz v. Hymowitz, 119 A.D.3d 736, 991 N.Y.S.2d 57 ; Overton v. Overton, 118 A.D.3d 858, 988 N.Y.S.2d 239 ).
The amount and duration of spousal maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 ). Here, the Supreme Court did not improvidently exercise its discretion in declining to award the plaintiff maintenance in light of her ability to become self-supporting, the parties' modest lifestyle, and funds distributed from the defendant to the plaintiff upon the parties' separation (see Greco v. Rodriguez, 80 A.D.3d 562, 563, 914 N.Y.S.2d 638 ; Cuozzo v. Cuozzo, 2 A.D.3d 665, 768 N.Y.S.2d 636 ).
Under the circumstances, including the parties' commensurate financial positions and the funds that the plaintiff received upon the parties' separation, the Supreme Court also properly denied the plaintiff an award of counsel fees (see Carr–Harris v. Carr–Harris, 98 A.D.3d 548, 552, 949 N.Y.S.2d 707 ; Crook v. Crook, 85 A.D.3d 958, 959, 925 N.Y.S.2d 881 ).
“In determining an award of child support, the Supreme Court ‘may depart from a party's reported income and impute income based on the party's past income or demonstrated earning potential’ ” (DeSouza–Brown v. Brown, 71 A.D.3d 946, 947, 897 N.Y.S.2d 228, quoting Mongelli v. Mongelli, 68 A.D.3d 1070, 1071, 892 N.Y.S.2d 471 ). The trial court “is afforded considerable discretion in determining whether to impute income to a parent” (Matter of Kennedy v. Ventimiglia, 73 A.D.3d 1066, 1067, 899 N.Y.S.2d 899 ; see Matter of Saladino v. Saladino, 115 A.D.3d 867, 982 N.Y.S.2d 360 ). Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in declining to impute additional income to the defendant. The findings regarding the defendant's income were based on an assessment of his credibility and are supported by the record (see Matter of Saladino v. Saladino, 115 A.D.3d 867, 982 N.Y.S.2d 360 ; Matter of Kennedy v. Ventimiglia, 73 A.D.3d 1066, 899 N.Y.S.2d 899 ; Matter of Saren v. Palma, 3 A.D.3d 572, 770 N.Y.S.2d 652 ).
The plaintiff's remaining contentions are either improperly raised for the first time on appeal or are without merit.