Opinion
198 CA 14-01381
03-27-2015
Brian MURPHY, Plaintiff–Respondent, v. Christine MURPHY, Defendant–Appellant.
Justin S. White, Williamsville, for Defendant–Appellant. Jack Danziger, Buffalo, for Plaintiff–Respondent.
Justin S. White, Williamsville, for Defendant–Appellant.
Jack Danziger, Buffalo, for Plaintiff–Respondent.
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant wife appeals from a judgment of divorce that, inter alia, distributed the marital assets and debt, and awarded her maintenance and child support from plaintiff husband. We agree with defendant that Supreme Court erred in failing to “set forth the factors it considered and the reasons for its decision” relative to the amount and duration of maintenance (Domestic Relations Law § 236[B][6][b] ; see Hendershott v. Hendershott, 299 A.D.2d 880, 880, 750 N.Y.S.2d 210 ; Hartnett v. Hartnett, 281 A.D.2d 900, 901, 722 N.Y.S.2d 199 ; Zurek v. Zurek, 255 A.D.2d 922, 922, 680 N.Y.S.2d 384 ). In its decision, the court stated only that it awarded maintenance “based upon the income the parties were earning at the commencement of the action,” which is but one of the 20 factors articulated in the statute (see § 236[B][6][a] ). The court ignored numerous other relevant factors, including the length of the marriage (18 years); defendant's extended absence from the work force; her lack of education and training; her childcare responsibilities during the marriage, including for a child with special needs; and defendant's loss of health insurance upon dissolution of the marriage (see id. ). It thus cannot be said that the court's maintenance award “reflects an appropriate balancing of [defendant]'s needs and [plaintiff]'s ability to pay” (Torgersen v. Torgersen, 188 A.D.2d 1023, 1024, 592 N.Y.S.2d 539, lv. denied 81 N.Y.2d 709, 599 N.Y.S.2d 803, 616 N.E.2d 158 ; cf. Salvato v. Salvato, 89 A.D.3d 1509, 1510, 933 N.Y.S.2d 791, lv. denied 18 N.Y.3d 811, 2012 WL 1432197 ; Burns v. Burns, 70 A.D.3d 1501, 1503, 894 N.Y.S.2d 795 ).
Moreover, we agree with defendant that there is no evidentiary support for the court's determination that plaintiff's income at the time of commencement was $89,648, i.e., $70,648 in wages and $19,000 in disability benefits (see Matter of Borowicz v. Mancini, 256 A.D.2d 713, 714, 681 N.Y.S.2d 125 ). Although plaintiff asserted in his postargument submission that his 2010 adjusted gross income was $70,648, he provided no documentary support for that assertion. In addition, the court's computation of plaintiff's income failed to include the $48,000 per year he receives from his naval pension, which was in pay status at the time of commencement (see generally Matter of Bow v. Bow, 117 A.D.3d 1542, 1543–1544, 985 N.Y.S.2d 791 ). The court therefore understated plaintiff's income in determining his maintenance obligation (see Weinheimer v. Weinheimer, 100 A.D.3d 1565, 1565–1566, 954 N.Y.S.2d 796 ). Although “the authority of this Court in determining issues of maintenance is as broad as that of the trial court” (Reed v. Reed, 55 A.D.3d 1249, 1251, 865 N.Y.S.2d 414 ), the record contains no competent proof of plaintiff's income such as pay stubs, financial affidavits, W–2 forms, or tax returns, thus precluding meaningful appellate review (see Bow, 117 A.D.3d at 1544, 985 N.Y.S.2d 791 ; Zurek, 255 A.D.2d at 922, 680 N.Y.S.2d 384 ; Gorzalkowski v. Gorzalkowski, 190 A.D.2d 1067, 1067, 594 N.Y.S.2d 1015 ). We therefore modify the judgment by vacating the maintenance award, and we remit the matter to Supreme Court to determine plaintiff's income and the amount and duration of maintenance, setting forth the statutory factors it considered and the reasons for the award (see Bow, 117 A.D.3d at 1544, 985 N.Y.S.2d 791 ; Borowicz, 256 A.D.2d at 714, 681 N.Y.S.2d 125 ; Zurek, 255 A.D.2d at 922, 680 N.Y.S.2d 384 ; Gorzalkowski, 190 A.D.2d at 1067, 594 N.Y.S.2d 1015 ). With respect to the child support award, we agree with defendant that the court failed to make a clear custody determination with respect to the two children, thus hindering meaningful review of the award. In its decision, the court stated that the older child was living with plaintiff and that the younger child was “rotating between both houses equally.” At trial, however, both parties testified that they had a “week-on week-off child custody arrangement” relative to both children. In determining child support, the court apparently accepted plaintiff's unsubstantiated assertion in his posthearing submission that the older child had moved in with him and “[would] not be returning to [defendant]'s house.” With respect to the younger child, the judgment states that, “by stipulation and agreement, the parties shall share custody of [the younger child] with the [d]efendant being designated the primary residential parent for school purposes.” No such “stipulation and agreement” appears in the record before us, and it is unclear whether “primary residential parent for school purposes” also means primary residential custodian for child support purposes (cf. Johnston v. Johnston, 63 A.D.3d 1555, 1555, 881 N.Y.S.2d 560 ). The older child is not referenced in the judgment at all. Even assuming, arguendo, that the court made an implicit custody determination, we agree with defendant that the child support calculation is flawed. The court “failed to explain its application of the ‘precisely articulated, three-step method for determining child support’ pursuant to the Child Support Standards Act” (CSSA) (Hartnett, 281 A.D.2d at 901, 722 N.Y.S.2d 199, quoting Matter of Cassano v. Cassano, 85 N.Y.2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; see McLoughlin v. McLoughlin, 63 A.D.3d 1017, 1019, 882 N.Y.S.2d 203 ). Among other things, the court failed to set forth the combined parental income or the parties' pro rata shares of the child support obligation (see McLoughlin, 63 A.D.3d at 1019, 882 N.Y.S.2d 203 ; Hartnett, 281 A.D.2d at 901, 722 N.Y.S.2d 199 ), and failed to determine whether to award child support for the amount of combined parental income in excess of the statutory cap (see Domestic Relations Law § 240[1–b] [c] [2], [5] ; [f]; Hartnett, 281 A.D.2d at 901, 722 N.Y.S.2d 199 ). Inasmuch as the record is insufficient to determine the appropriate amount of child support, we further modify the judgment by vacating the custody determination and child support award, and we direct the court on remittal to make a custody determination with respect to both children and to recalculate child support pursuant to the CSSA (see Sonbuchner v. Sonbuchner, 96 A.D.3d 566, 568–569, 947 N.Y.S.2d 80 ; McLoughlin, 63 A.D.3d at 1019, 882 N.Y.S.2d 203 ).
Defendant further contends that the court erred in crediting plaintiff for marital debt he allegedly paid. We agree. “Domestic Relations Law § 236(B)(1)(c) provides that outstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse who incurred them may be offset against the total marital assets to be divided. However, there must be an offer of proof that the debts constitute marital expenses” (Feldman v. Feldman, 204 A.D.2d 268, 270, 611 N.Y.S.2d 879 ). Here, the only reference to debt at the hearing was plaintiff's conclusory, self-serving testimony that he “paid off the combined credit card debt.” Plaintiff presented no proof of any such debt or his payment thereof at the hearing, and we agree with defendant that the unauthenticated documents appended to plaintiff's posthearing submission and not received in evidence at trial are not competent proof and, therefore, should not have been relied upon by the court. Even if we were to accept those submissions as competent proof, as the court apparently did, we would conclude that the documents do not establish (1) that the debt was marital in nature; (2) the amount of the debt; or (3) that plaintiff paid the debt. We therefore conclude that the court erred in crediting plaintiff $10,000 for his alleged payment of the parties' credit card debt, and we further modify the judgment accordingly (see Higgins v. Higgins, 50 A.D.3d 852, 853–854, 857 N.Y.S.2d 171 ; Dermigny v. Dermigny, 23 A.D.3d 429, 430–431, 805 N.Y.S.2d 577 ; Phillips v. Phillips, 249 A.D.2d 527, 528, 672 N.Y.S.2d 365 ).
We reject the further contention of defendant that the court erred in refusing to distribute plaintiff's disability benefits from the Veterans' Administration (VA). “[B]ecause VA disability benefits are based solely upon a ‘disability resulting from personal injury suffered or disease contracted in the line of duty’ (38 U.S.C. § 1131 ) and do not represent deferred compensation (see, 38 U.S.C. §§ 1114, 1134 ), such benefits are separate property” and are “not subject to equitable distribution” (Newman v. Newman, 248 A.D.2d 990, 990, 670 N.Y.S.2d 131 ; see Domestic Relations Law § 236[B][1] [d][2] ; Ward v. Ward, 101 A.D.2d 1006, 1007, 476 N.Y.S.2d 712, lv. dismissed 63 N.Y.2d 770, 506 N.Y.S.2d 867, 498 N.E.2d 431, 68 N.Y.2d 805, 506 N.Y.S.2d 867, 498 N.E.2d 431, lv. denied 69 N.Y.2d 603, 512 N.Y.S.2d 1027, 504 N.E.2d 397 ). With respect to plaintiff's naval pension, although the court awarded defendant her Majauskas share of those benefits, defendant contends that she is entitled to retroactive payments of those benefits from the date of commencement to the date of the judgment. That contention is without merit. The record establishes that defendant had access to the naval pension benefits and used those benefits to pay her bills during the pendency of the action (see generally Tedesco v. Tedesco, 41 A.D.3d 1246, 1247, 838 N.Y.S.2d 759 ).
We agree with defendant, however, that the court abused its discretion in awarding her only $2,000 in attorney's fees given that plaintiff is the monied spouse and there is no evidence in this record that defendant engaged in dilatory tactics (see Suppa v. Suppa, 112 A.D.3d 1327, 1329, 978 N.Y.S.2d 502 ; Leonard v. Leonard, 109 A.D.3d 126, 129–130, 968 N.Y.S.2d 762 ). We therefore further modify the judgment by vacating the award of attorney's fees, and we direct the court on remittal to reconsider that award in light of the financial circumstances of the parties, including the maintenance and distributive awards (see generally DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881–882, 524 N.Y.S.2d 176, 518 N.E.2d 1168 ; McCarthy v. McCarthy, 172 A.D.2d 1040, 1040, 569 N.Y.S.2d 547 ).
Finally, we conclude that, contrary to defendant's contention, the court did not abuse its discretion in declining to require plaintiff to obtain life insurance to secure his support obligations (see generally Bellizzi v. Bellizzi, 107 A.D.3d 1361, 1364, 968 N.Y.S.2d 235 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the 2nd, 5th, 6th, 9th, and 10th decretal paragraphs, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Niagara County, for further proceedings.