This is an action for divorce and ancillary relief.
A New York Family Lawyer said that on 29 December 1984, plaintiff wife and defendant husband got married. Sometime in 1989, the defendant went into business with a partner to buy a funeral home in Suffolk County. Plaintiff, on the other hand, operated a separate business which provided headstones, and ran a small karaoke business.
Sometime in March 2004, plaintiff commenced an action for divorce. At that time, the parties had two unemancipated children at.
Before trial, the parties stipulated that the total value of defendant’s interest in the funeral home business was $760,000.
A New York Custody Lawyer said that at trial, plaintiff testified that defendant had attempted to conceal his income when his ex-wife had moved for an increase in child support for his son from his previous marriage. According to a forensic accountant, in his testimony, defendant admitted that he received approximately $25,000 in unreported annual income.
After trial or on 24 October 2008, the Supreme Court imputed an additional $5,000 per year as income to defendant for the personal car expenses paid for by the funeral home; it further imputed the additional sums of $18,000 as annual income to defendant for the cash received from the funeral home which were used for personal expenses and $19,500 for the undistributed earnings of the funeral home; with regard to maintenance, the Supreme Court directed defendant to pay plaintiff, beginning 1 November 2008, the sums of $1,000 per month for the first two years, $750 per month for the next two years, and $500 per month until 1 November 2013.
Plaintiff moved to modify the decision so that the maintenance award would be retroactive to the date of her initial application.
A Suffolk County Family Lawyer said that on 13 February 2009, the Supreme Court granted plaintiff’s motion.
In a judgment entered 13 May 2009, the Supreme Court directed defendant to pay plaintiff: $1,000 per month from the date of the commencement of the action until 1 November 2010, $750 per month until 1 November 2012, and $500 per month until 1 November 2013 for maintenance; $188.91 per week for child support; $395,000 for plaintiff’s share in the funeral home business; 90% of the fee for the forensic accountant; and, $35,000 as attorney’s fee.
The defendant appealed.
First, according to defendant, the Supreme Court should have included a provision in the judgment stating that his maintenance obligation would terminate upon the death of either party or the plaintiff’s remarriage.
A Suffolk County Custody Lawyer said that in as much as the plaintiff agreed with the defendant, and consented to such a modification of the judgment, the court modified the judgment accordingly.
Second, as repeatedly held: “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. 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. Where a party’s account is not believable, the court may impute a true or potential income higher than alleged.”
Here, the Supreme Court providently exercised its discretion in imputing income to defendant based on, among other things, the evidence of his attempts to conceal his true income.
Third, according to defendant, with regard to the maintenance award, the Supreme Court erred in changing the start date and duration of maintenance payments between the time it issued the decision and the time it issued the judgment.
Here, it must be noted that the Supreme Court modified its decision by issuing an order granting plaintiff’s motion to make the maintenance payments retroactive; thus, the judgment conformed to the decision.
Fourth, according to defendant, the Supreme Court failed to account for the consequences of embedded capital gains taxes in determining the value of the defendant’s interest in the funeral home business for equitable distribution purposes.
Here, defendant had already entered into a stipulation with plaintiff establishing the value of the funeral home business. Thus, the argument was bereft of merit.
Fifth, a court must consider the equities and circumstances of each particular case and the parties’ respective financial positions in determining a counsel fee application.
Here, the Supreme Court providently exercised its discretion in awarding a counsel fee to plaintiff, and it also providently exercised its discretion in directing defendant to pay 90% of the forensic accountant’s fee.
The defendant’s remaining contentions were unmeritorious.
In sum, the judgment was modified, on the law, by adding thereto a provision terminating defendant’s maintenance obligations upon the death of either party or plaintiff’s remarriage; as so modified, the judgment was affirmed insofar as appealed from, with costs.
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