Opinion
2017–03611 Index No. 1170/12
12-11-2019
Sara G. KLEIN, Respondent, v. Philip KLEIN, etc., Appellant, et al., Defendants.
Paul T. Gentile, P.C., New York, N.Y. (Stephen J. Riegel of counsel), for appellant. Akerman LLP, New York, N.Y. (Donald N. David and Sara L. Mandelbaum of counsel), for respondent.
Paul T. Gentile, P.C., New York, N.Y. (Stephen J. Riegel of counsel), for appellant.
Akerman LLP, New York, N.Y. (Donald N. David and Sara L. Mandelbaum of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief, the defendant Philip Klein appeals from a judgment of divorce of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), dated March 7, 2017. The judgment of divorce, insofar as appealed from, upon a decision of the same court (Howard Miller, R.) dated November 30, 2016, made after a nonjury trial, imputed $450,000 in income to that defendant, awarded that defendant a credit in the sum of only $50,000 against his accrued support arrears representing his equitable share of certain marital property, awarded the plaintiff maintenance in the sum of $5,000 per month for seven years, awarded the plaintiff child support in the sum of $4,381.25 per month, awarded the plaintiff attorney's fees in the sum of $40,000, awarded the plaintiff expert witness fees in the sum of $36,000, directed that defendant to pay $100,000 in attorney's fees directly to the plaintiff's attorney's law firm, and, when calculating that defendant's accrued child support arrears, did not reduce that defendant's pendente lite child support obligation to reflect the emancipation of two of the parties' children.
ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs.
The plaintiff and the defendant Philip Klein (hereinafter the defendant) were married on November 9, 1987. They had six children during their marriage. The plaintiff commenced this action for a divorce and ancillary relief in June 2012. After a nonjury trial, the Supreme Court issued a judgment of divorce dated March 7, 2017, which, among other things, imputed $450,000 in annual income to the defendant, awarded the plaintiff maintenance in the sum of $5,000 per month for seven years, child support in the sum of $4,381.25 per month, attorney's fees in the sum of $40,000, and expert witness fees in the sum of $36,000, and directed the defendant to pay $100,000 in attorney's fees directly to the plaintiff's attorney's law firm. The defendant appeals.
"A court need not rely upon a party's own account of his [or her] finances, but may impute income based upon the party's past income or demonstrated future potential 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 her employment history, future earning capacity, educational background, or money received from friends and relatives" ( Duffy v. Duffy , 84 A.D.3d at 1152, 924 N.Y.S.2d 449 [internal quotation marks omitted]; see Matter of Rohme v. Burns , 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 ; Wesche v. Wesche , 77 A.D.3d at 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" ( Wesche v. Wesche , 77 A.D.3d at 923, 909 N.Y.S.2d 764 ; see Duffy v. Duffy , 84 A.D.3d at 1152, 924 N.Y.S.2d 449 ). "The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal" ( Matter of Monti v. DiBedendetto , 151 A.D.3d 864, 866, 56 N.Y.S.3d 544 ; see Matter of Kiernan v. Martin , 108 A.D.3d 767, 768, 970 N.Y.S.2d 69 ). Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion by imputing to him $450,000 in annual income when computing his maintenance and child support obligations (see Muldowney–Walsh v. Desroches , 167 A.D.3d 1022, 1024, 91 N.Y.S.3d 167 ; R.S. v. B.L. , 151 A.D.3d 609, 610, 57 N.Y.S.3d 146 ).
The "amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts" ( Grasso v. Grasso , 47 A.D.3d 762, 764, 851 N.Y.S.2d 213 ; see Lubrano v. Lubrano , 122 A.D.3d 807, 808, 995 N.Y.S.2d 741 ; Massirman v. Massirman , 78 A.D.3d 1021, 1022, 911 N.Y.S.2d 462 ). The factors to consider in awarding maintenance include, among others, the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the age and health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, the reduced or lost lifetime earning capacity of the party seeking maintenance, the presence of children of the marriage, contributions and services of the party seeking maintenance as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party, the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties (see former Domestic Relations Law § 236[B][6][a] ; Minervini v. Minervini , 152 A.D.3d 666, 668–669, 58 N.Y.S.3d 568 ; Merrick v. Merrick , 132 A.D.3d 742, 18 N.Y.S.3d 630 ; Kret v. Kret , 222 A.D.2d 412, 634 N.Y.S.2d 719 ). Here, contrary to the defendant's contention, the Supreme Court considered the relevant statutory factors and providently exercised its discretion in awarding the plaintiff maintenance in the sum of $5,000 per month for seven years (see Belilos v. Rivera , 164 A.D.3d 1411, 1414–1415, 84 N.Y.S.3d 536 ; Marin v. Marin , 148 A.D.3d 1132, 51 N.Y.S.3d 111 ; Dochter v. Dochter , 118 A.D.3d 665, 986 N.Y.S.2d 357 ).
Contrary to the defendant's contention, the Supreme Court's determination to calculate the parties' child support obligations based on combined parental income over the $143,000 statutory cap is adequately supported by the record and was not an improvident exercise of the court's discretion (see Matter of Cassano v. Cassano , 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Iarocci v. Iarocci , 98 A.D.3d 999, 951 N.Y.S.2d 176 ).
"The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" ( Black v. Black , 140 A.D.3d 816, 816, 33 N.Y.S.3d 379 [internal quotation marks omitted]; see Culen v. Culen , 157 A.D.3d 930, 932, 69 N.Y.S.3d 881 ). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions" ( Mueller v. Mueller , 113 A.D.3d 660, 661, 978 N.Y.S.2d 696 ; see Margolis v. Cohen , 153 A.D.3d 1390, 61 N.Y.S.3d 328 ; Matter of Weiss v. Rosenthal , 135 A.D.3d 780, 781, 22 N.Y.S.3d 592 ). Additionally, the court may also consider whether one party has engaged in conduct or taken positions resulting in a delay of the proceedings or engaged in unnecessary litigation (see Giallo–Uvino v. Uvino , 165 A.D.3d 894, 897, 86 N.Y.S.3d 125 ; Matter of Weiss v. Rosenthal , 135 A.D.3d at 781, 22 N.Y.S.3d 592 ; Prichep v. Prichep , 52 A.D.3d 61, 64, 858 N.Y.S.2d 667 ). Here, considering the disparity of income between the parties, the relative merits of the parties' positions, and the defendant's conduct that delayed the proceedings, the Supreme Court providently exercised its discretion in awarding the plaintiff attorney's fees in the sum of $40,000 and expert witness fees in the sum of $36,000, and in directing the defendant to pay $100,000 in attorney's fees directly to the plaintiff's attorney's law firm (see Romeo v. Muenzler–Romeo , 169 A.D.3d 845, 846, 94 N.Y.S.3d 121 ; Belilos v. Rivera , 164 A.D.3d at 1415, 84 N.Y.S.3d 536 ; Babinski v. Babinski , 152 A.D.3d 477, 478, 58 N.Y.S.3d 122 ; Chesner v. Chesner , 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409 ).
The defendant's remaining contentions are without merit.
SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.