Sotnikv.Zavilyansky

Supreme Court, Appellate Division, Second Department, New York.Dec 26, 2012
956 N.Y.S.2d 514 (N.Y. App. Div. 2012)

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2012-12-26

Regina SOTNIK, respondent, v. Sergey ZAVILYANSKY, appellant.

Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Maria Coffinas of counsel), for appellant. Bonnie P. Josephs, New York, N.Y., for respondent.



Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Maria Coffinas of counsel), for appellant. Bonnie P. Josephs, New York, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Morgenstern, J.), dated April 12, 2010, which, inter alia, upon a decision and order of the same court dated January 6, 2010, made after a nonjury trial, among other things, imputed to him an annual income of $135,000 for the purpose of calculating his child support obligation, awarded the plaintiff an attorney's fee in the sum of $75,000, awarded the plaintiff exclusive occupancy of the former marital residence until the parties' child attains the age of 21 years, failed to direct that his child support obligation shall be decreased by the amount of any college room and board expenses he incurs while the parties' child attends college, credited the plaintiff the sum of $124,876 based on the defendant's wasteful dissipation of marital property, failed to award him a portion of the plaintiff's enhanced earning capacity from her medical license, and failed to provide that the life insurance policy which he is required to provide and maintain to secure his obligations to pay the award of child support may be a declining term policy that would permit him to reduce the amount of coverage by the amount of the child support actually paid.

ORDERED that the judgment is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff exclusive occupancy of the former marital residence until the parties' child attains the age of 21, and substituting therefor a provision awarding the plaintiff exclusive occupancy of the former marital residence until the parties' child attains the age of 18, (2) by adding a provision thereto directing that the defendant's child support obligation shall be decreased by the amount of any college room and board expenses he incurs while the parties' child attends college, (3) by adding a provision thereto directing that the life insurance policy which the defendant is required to provide and maintain to secure his obligations to pay the award of child support may be a declining term policy that would permit him to reduce the amount of coverage by the amount of child support actually paid, and (4) by deleting the provision thereof crediting the plaintiff the sum of $124,876 based on the defendant's wasteful dissipation of marital property, and substituting therefor a provision crediting the plaintiff the sum of $93,438 based on the defendant's wasteful dissipation of marital property; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

In determining the length of time that a custodial parent should be granted exclusive occupancy of the former marital residence, the appropriate consideration involves an appropriate balancing of “ ‘the need of the custodial parent to occupy the marital residence ... against the financial need of the parties' ” ( Gahagan v. Gahagan, 76 A.D.3d 538, 540, 906 N.Y.S.2d 89, quoting Goldblum v. Goldblum, 301 A.D.2d 567, 568, 754 N.Y.S.2d 32;see Mosso v. Mosso, 84 A.D.3d 757, 760, 924 N.Y.S.2d 394). Under the circumstances of this case, the Supreme Court should have awarded the plaintiff exclusive occupancy of the former marital residence only until the parties' son attains the age of 18 years, rather than until he turns 21 years old ( see Mosso v. Mosso, 84 A.D.3d at 760, 924 N.Y.S.2d 394;Gahagan v. Gahagan, 76 A.D.3d 538, 906 N.Y.S.2d 89;Cabeche v. Cabeche, 10 A.D.3d 441, 780 N.Y.S.2d 909;Waldmann v. Waldmann, 231 A.D.2d 710, 647 N.Y.S.2d 827).

“ ‘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' ” ( Haagen–Islami v. Islami, 96 A.D.3d 1004, 1005, 946 N.Y.S.2d 889, quoting Duffy v. Duffy, 84 A.D.3d 1151, 1151–1152, 924 N.Y.S.2d 449 [internal quotation marks omitted]; see Cusumano v. Cusumano, 96 A.D.3d 988, 989, 947 N.Y.S.2d 175). “ ‘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' ” ( Haagen–Islami v. Islami, 96 A.D.3d at 1005, 946 N.Y.S.2d 889, quoting Duffy v. Duffy, 84 A.D.3d at 1152, 924 N.Y.S.2d 449 [internal quotation marks omitted] ). Here, given the defendant's earning history from his private medical corporations, his current employment as a medical doctor, and his other income from his associations with Kingsbrook Medical Center, the Supreme Court providently exercised its discretion in imputing an annual income to the defendant of $135,000 for the purpose of calculating his child support obligation.

As the defendant correctly contends, the Supreme Court should have directed that his child support obligation be decreased by the amount of any college room and board expenses he incurs while the parties' child attends college ( see Ayers v. Ayers, 92 A.D.3d 623, 625, 938 N.Y.S.2d 572;Matter of Levy v. Levy, 52 A.D.3d 717, 718, 860 N.Y.S.2d 617;Reinisch v. Reinisch, 226 A.D.2d 615, 641 N.Y.S.2d 393).

The Supreme Court should have allowed the defendant to secure his child support obligations by maintaining a declining term policy of life insurance rather than requiring him to maintain the existing policy coverage of $1,400,000 ( see Jayaram v. Jayaram, 62 A.D.3d 951, 954, 880 N.Y.S.2d 305;Matter of Moran v. Grillo, 44 A.D.3d 859, 861, 843 N.Y.S.2d 674;see also Matter of Anonymous v. Anonymous, 31 A.D.3d 955, 957, 819 N.Y.S.2d 588).

In making its equitable distribution award, the Supreme Court credited the plaintiff the sum of $124,876 based on what it termed the defendant's “wasteful dissipation” of marital property. This included $50,000 that the defendant used to retain an attorney in connection with his medical license, which license constituted separate property since he obtained it prior to the marriage ( seeDomestic Relations Law § 236[B][1][d][1]; Dewell v. Dewell, 288 A.D.2d 252, 733 N.Y.S.2d 114). However, since the $50,000 was marital property, the plaintiff should have been credited only one-half of that sum, or $25,000 ( see Khan v. Ahmed, 98 A.D.3d 471, 473, 949 N.Y.S.2d 428; Dewell v. Dewell, 288 A.D.2d at 252, 733 N.Y.S.2d 114). The $124,876 credit also included the sum of $11,645 representing the amount the defendant had withdrawn from a joint business account, and the sum of $1,231 representing marital funds used by the defendant to pay for an application for a Florida medical license. Since these were marital funds, the Supreme Court should have credited the plaintiff with only one-half of these amounts as well ( seeDomestic Relations Law § 236[B][1][c]; Marshall v. Marshall, 91 A.D.3d 610, 611, 937 N.Y.S.2d 253;cf. Dewell v. Dewell, 288 A.D.2d at 252, 733 N.Y.S.2d 114).

Under the circumstances of this case, where the defendant's contribution to the plaintiff's attainment of her medical license was de minimis, the Supreme Court providently exercised its discretion in determining that the defendant was not entitled to any distributive share of the plaintiff's enhanced earning capacity from her medical license ( see Cabeche v. Cabeche, 10 A.D.3d 441, 780 N.Y.S.2d 909;see also Esposito–Shea v. Shea, 94 A.D.3d 1215, 1218, 941 N.Y.S.2d 793).

The award of counsel fees to the plaintiff was a provident exercise of discretion ( seeDomestic Relations Law § 237[a]; DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;Levy v. Levy, 289 A.D.2d 379, 380, 734 N.Y.S.2d 247;Krutyansky v. Krutyansky, 289 A.D.2d 299, 300, 733 N.Y.S.2d 920;Ferina v. Ferina, 286 A.D.2d 472, 475, 729 N.Y.S.2d 533).

The defendant's remaining contentions are without merit.