[*1]
S.P. v F.O.
2008 NY Slip Op 51217(U) [20 Misc 3d 1104(A)]
Decided on June 18, 2008
Supreme Court, Nassau County
DeStefano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 18, 2008
Supreme Court, Nassau County


S.P., Plaintiff,

against

F.O., Defendant.




xx08



Frederic Schoenfeld, Esq., for Plaintiff, S.P.

1565 Franklin Avenue, Garden City, New York 11530

516-248-6800

Marc J. Ialenti, for Defendant, F.O.

170 Old Country Road, Mineola New York, 11501

516-428-2400

Vito M. DeStefano, J.

On March 25 and 27, and April 3, 2008, this court conducted a trial of the above-captioned matter on the limited issue of child support, and more specifically, whether income should be imputed to the Defendant Husband ("Husband") for purposes of calculating his child support obligation to the Plaintiff Wife ("Wife"). All other issues, including grounds, custody, visitation, equitable distribution, maintenance, and all arrears, were resolved by stipulation of the parties.[FN1] [*2]

The parties agreed to submit "on paper" the issue of attorneys' fees.[FN2] Also submitted for consideration were the parties' closing arguments.

On the basis of the evidence presented at the trial and in consideration of the parties' post-trial submissions, the court makes the following determinations:

FINDINGS OF FACT


The testimony of the Wife was, for the most part, credible. The testimony of the Husband was also credible, in part. To the extent that the parties' testimony was in disagreement on essential points, this decision notes whose testimony was determined to be credible. The court's conclusions regarding credibility are based on the substance and consistency of the testimony elicited at trial, as well as the demeanor of the witnesses.

The parties were married on August 20, 1995 in a religious ceremony. On March 5, 2007, the Husband left the marital residence in Farmingdale and did not return to live there despite his Wife's requests. Based on the foregoing, and after the other statutory predicates were met, the court granted the Wife's application for a judgment of divorce on the ground of abandonment.

At the start of their marriage, the Wife was employed as a high school math teacher. The Wife ceased working in 1999 when she and her husband were attempting to have a child. Two children were born of the marriage, R— (now eight years old), born [—,—, 2000], and J— (now three years old), born [—,—, 2005]. As of the time of trial, the Wife was unemployed, the parties having agreed that she would return to work when their youngest child was in school, full-time. To the extent that the Husband's testimony is not in accord with the Wife's testimony on this point, the court credits the Wife's testimony.

The Husband began working for the Department of Transportation ("DOT") in 1996.

In September 1997, the Husband took a second job at [an undisclosed place of business], becoming night manager, before being "let go" in September 2002. Shortly, thereafter, the [*3]Husband began working at [an undisclosed place of business] (also in a part-time position), and continued working there until December 2006 or January 2007.

With respect to his DOT job, the Husband always worked full-time, five days per week. His work day began at approximately 8:00 a.m. and ended at approximately 4:00 p.m. Two days during the week, after coming home from his DOT job, the Husband would go to his second job at about 5:00 p.m., working until midnight. He also worked Saturday and Sunday evenings at his second job from 5:00 p.m. until midnight. The Husband held a second job for 10 years during the marriage.

In 2005, the parties decided that they wanted to move into a house. Believing that they could not afford a house on Long Island, they decided to move "upstate" to Albany. The Husband requested, and after some delay, was granted a transfer by the DOT to Albany, effective February 8, 2007. The Husband quit his job at [an undisclosed place of business] after learning he was being transferred. As a result of the Husband's reassignment to Albany, he became responsible for work in areas from Albany to the lower Hudson Valley.

The Wife testified that the Husband planned on getting a second job in the Albany area once they relocated. The Husband testified that he never contemplated getting a second job after the relocation, given the size of the "Albany region" and factoring in extended travel time. The court credits the testimony of the Husband in this regard. It was also conceded by the Wife, without elaboration, that she "had a problem" with the Husband's second job.

At the time of trial, the Husband's work area had changed to the lower Hudson Valley area, which included Westchester, Rockland, Putnam, Orange Counties and the Bronx, which is different both from the "Albany region" and the area to which he had been assigned until being transferred to the Albany region in early 2007 (the Suffolk County region). Presently, the Husband reports to work at 8:00 a.m. and finishes at 4:10 p.m. Inasmuch as his work locations vary, he arrives home at different times each day. According to the Husband, he has not sought additional employment because his DOT work schedule and travel time, when considered with his desire to have visitation with the parties' children, "leaves [him] very little time".

At no point did the Husband testify that he was unable to transfer to another work area closer to Farmingdale, where he continues to live, or to the Suffolk County region. Moreover, he did testify, in a somewhat contradictory manner, that he "kind of almost unofficially re-transferred back down here to accommodate seeing those children". The Husband was also vague and non-specific when testifying to the time he currently spends traveling to and from work and to the amount of free time available to him.

The Wife testified that to her knowledge the Husband did not presently have a second job; however, he told her that he would be getting a second job after the divorce "so that he didn't have to give me a penny for more support". The court credits the testimony of the Wife in this regard.

The court notes that for a period after the Husband left the marital home in March 2007, [*4]the Wife and Husband continued to discuss the possibility of moving to Albany.

The Husband's base salary from the DOT in 2007 was $47,631. In addition, from his second job at [an undisclosed place of business], the Husband earned the following amounts (rounded): 2006 - $20,871; 2005 - $20,188; 2004 - $14,098; 2003 - $16,045.

CONCLUSIONS OF LAW

Child support is awarded pursuant to the Child Support Standards Act ("CSSA"). "[T]he CSSA was enacted to bring greater uniformity, predictability and equity in fixing child support awards' by replacing the former needs-based discretionary system with a precisely articulated method for determining support" (Bill v Bill, 214 AD2d 84 [2d Dept 1995] quoting Matter of Cassano v Cassano, 85 NY2d 649 [1995]). Accordingly, under the CSSA, child support is calculated by applying a percentage, varying with the number of unemancipated children of the marriage, to the parties' total income up to $80,000, less certain statutory deductions.

However, the court is not bound by a party's own account of his or her financial circumstances, but may impute income based on the party's past income and education (see, Roncanello v Roncanello, 254 AD2d 269 [2d Dept 1998]). Moreover, courts may determine child support obligations based on a party's earning capacity or potential, rather than the party's current economic situation (see, Fruchter v Fruchter, 29 AD3d 942 [2d Dept 2006]).

As the Second Department held in Bittner v Bittner (296 AD2d 516 [2d Dept 2002]):

"Child support is determined by the parents' ability to provide for their child rather than their current economic situation" * * *. Thus, in determining a party's child support obligation, a court may impute income based upon the party's past earnings and earning capacity * * *. Moreover, the court is not required to find that a party has deliberately reduced his income to avoid his support obligations in order to impute income to that party * * *. (Internal citations omitted).

At bar, inasmuch as there are two unemancipated children of the marriage, the applicable statutory percentage is 25%. In addition, there is no dispute that the amount of income earned by the Husband from his full-time employment with the DOT is $47,631. Further, the court concludes that income should be imputed to the Husband based on his earning capacity, prior secondary work history, which includes a total of 10 years of employment at two secondary jobs, and statements to his Wife regarding his intention to secure another job in the future without paying additional support. In so holding, the court is not unmindful of the fact that the Husband and Wife had agreed that he would leave his second job in contemplation of the family's anticipated relocation to Albany, an occurrence which never eventuated.

In consideration of the Husband's work history and the amounts previously earned from his second job, the court concludes that it is reasonable to impute income above his DOT salary in the amount of $11,000, which is considerably less than what he earned from his secondary employment in 2006. The reduced award takes into account the increased travel time associated with the Husband's present DOT assignment as well as his visitation schedule. [*5]

Therefore, the amount of child support to be paid by the Husband to the Wife shall be calculated on an income of $58,631, less FICA contributions of $4,485. Applying the statutory percentage of 25% to that figure ($54,146), the Husband's yearly child support obligation is $13,536.50, or approximately $260 per week.

Payment of this amount shall commence upon service of this decision, prior to issuance of judgment, and shall be retroactive to the time of trial. The court is cognizant of the general rule that requires child support to be retroactive "as of the date of application therefor" (Domestic Relations Law § 240(1)(h)), however, in light of the stipulation entered into at trial, which settled all arrears, maintenance and equitable distribution issues, support will be retroactive to the extent indicated herein. Any arrears owing from the time of trial are to be paid in full within 30 days of service of the judgment with notice of entry.

DECISION AS TO ATTORNEYS' FEES AND EXPENSES

With respect to the Wife's request for attorneys' fees and expenses, the following is noted:

At trial and in her post-trial submissions, the Wife has requested attorneys' fees and expenses for litigating and trying the case and for a contempt motion made, inter alia, to enforce a pendente lite order, which, as stated, was settled at trial except for the issue of attorneys' fees and expenses (see, Frederic Scheinfeld Affirmation of Legal Services dated April 1, 2008, at pp.2-3).

With respect to the fees and expenses associated with the contempt application, Domestic Relations Law § 237(c) states that "[i]n any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner." Additionally, Domestic Relations Law § 238 states that "[i]n any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce * * * or in any proceeding pursuant to section * * * two hundred forty-five * * *, the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding."

Once the moving party demonstrates that a lawful order of the court has not been complied with and that monies ordered to be paid pursuant thereto have not been paid, willfulness is established and the burden shifts to the other party to offer competent, credible evidence of an inability to make such payments (Domestic Relations Law § 237(c); Yeager v Yeager, 38 AD3d 534 [2d Dept 2007]; see also, Powers v Powers, 86 NY2d 63 [1995]).

Here, it was established that monies were not paid as required under the pendente lite order. After the Wife met her initial burden under Domestic Relations Law § 237(c), it became incumbent upon the Husband to establish an inability to make payments as ordered or some reasonable excuse for not paying. This he failed to do in his papers or at trial. Therefore, attorneys' fees must be ordered with respect to the contempt application. [*6]

Even assuming that willfulness had not been demonstrated, and, thus, that an award of attorneys' fees under section 237(c) would be inappropriate, the court would award attorneys' fees (and does award expenses) to the Wife for her contempt motion under section 238. In this regard, the court again notes that the Husband has failed to rebut the specific allegations of non-payment contained in the Wife's post-trial submissions. That the Husband has a limited income is undisputed. However, the Husband failed to state that his limited income prevented him from making timely and adequate payments.

The post-trial submissions of the Wife's attorney reflect approximately $7,000 in fees and expenses incurred in connection with the contempt application. Arrears, at the time the enforcement application was made (January 2008), totaled approximately $7,667.68. The court concludes that an award of $2,500 is reasonable under the circumstances.

Regarding the issue of attorneys' fees for litigation and trial (excluding the contempt motion), the following is noted:

Domestic Relations Law § 237 states:

(a) In any action or proceeding brought * * * (3) for a divorce * * * the court may direct either spouse * * * to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. Such direction must be made in the final judgment in such action or proceeding, or by one or more orders from time to time before final judgment, or by both such order or orders and the final judgment * * *.

In Prichep v Prichep (__AD2d__, 2008 NY Slip Op 4335, dec. May 6, 2008 [2d Dept]), the Second Department stated:

An award of counsel fees pursuant to Domestic Relations Law§237(a) is a matter within the sound discretion of the trial court, and the issue "is controlled by the equities and circumstances ofeach particular case" (Morrissey v Morrissey, 259 AD2d 472,473* * *; see Timpone v Timpone, 28 AD3d 646 * * * ; Walker v Walker, 255 AD2d 375, 376 * * *). In determining whether to award fees, the court should "review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879 * * *; see Ciampa v Ciampa, 47 AD3d 745 * * *). The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Ciampa v Ciampa, 47 AD3d at 748; Timpone v Timpone, 28 AD3d at 646; Morrissey v Morrissey, 259 AD2d at 473; Walker v Walker, 255 AD2d 375, 376 * * *).

Other factors include the nature and extent of services rendered and the complexity of issues involved (see, Farrell v Cleary-Farrell, 306 AD2d 597 [3d Dept 2003]), the ability of each [*7]spouse to pay their own counsel fees (see, Sclafani v Sclafani, 178 AD2d 830 [3d Dept 1992]), whether an equitable distribution award was made (see, Zema v Zema, 17 AD3d 360 [2d Dept 2005]), and the earning power and assets of the parties (see, Kavanakudiyil v Kavanakudiyil, 203 AD2d 250 [2d Dept 1994]).

At bar, the court concludes that an award of attorneys' fees and expenses in this case is appropriate. This conclusion is based on a consideration of the factors cited above, and more particularly, on the following: that the Husband is working; that the Wife is presently not working; and that her position on the imputation of income to the Husband, was determined, after trial, to be meritorious.

However, the amount of fees requested by the Wife is not reasonable. Although the parties have very limited assets and income, their post-trial submissions indicate attorneys' fees exceeding $60,000, with attorneys' fees for the Wife in the amount of $52,788.60, and attorneys' fees for the Husband of approximately $8,000. Significantly, discovery in this matter was limited, there being no depositions or interrogatories, and the issues relatively simple. Moreover, the Husband was ordered to pay attorneys' fees and expenses in connection with a pendente lite order and contempt application (see above). Additionally, it is relevant that the parties agreed for the Husband to forego distribution of their cooperative apartment for more than five years (there being no mortgage on the apartment), that the Wife is a teacher holding a Masters degree who, according to her own testimony and statement by her attorney, will be returning to work, and will, after judgment, retain pension funds in amount exceeding those held by the Husband (Net Worth Statement of Wife dated February 4, 2008).

Accordingly, the court, pursuant to Domestic Relations Law §237(a), awards the Wife $5,000 in attorneys' fees and expenses. This award, as well as the award granted on the contempt motion, are to be paid directly to the Wife, who has paid more than $33,000 in attorneys' fees thus far (see, Prichep v Prichep, supra [payment of attorneys' fees directly to spouse appropriate under the circumstances]; Silver v Silver, 63 AD2d 1017 [2d Dept 1978] [court properly ordered Husband to pay attorneys' fees directly to Wife as reimbursement for monies advanced by her to attorney]). Payment is to be made within 90 days of service of a copy of the judgment with notice of entry.

Submit judgment on notice in accordance with 22 NYCRR § 208.33.

Dated: June 18, 2008

________________________

Hon. Vito M. DeStefano J.S.C. [*8]

Footnotes


Footnote 1:The parties agreed that the Wife would have custody of the parties' two children, whose names and birthdates appear in the body of this decision and order. A visitation schedule was agreed to during trial. The Wife was granted exclusive use and occupancy of the marital residence (a cooperative apartment) for a period of five-and-one-half years from the issuance of a judgment of divorce, at which time the marital residence will be sold, the net proceeds being equally distributed, except that the Wife will be given an additional $10,800 from the Husband's share of the proceeds to pay a lump sum they describe as "maintenance". In addition, regarding the sale of the marital residence, the Wife was given the "Right of First Refusal" to purchase it. The Wife was to remain responsible for all maintenance and upkeep of the house. Each party also agreed to retain, without distributing, their own IRAs, 401 Plans, retirement accounts and bank accounts. The Husband agreed to maintain life insurance policies in the amount of $350,000, naming the children as beneficiaries and the Wife as trustee. The parties further agreed to equally share child care expenses, unreimbursed medical expenses for the children and college expenses (up to the SUNY limit) and to alternate as to the tax deduction consequences respecting the children. The Husband is also required to maintain the children as beneficiaries under his health insurance plan.

Footnote 2:In January 2008, the Wife moved for an order holding the Husband in contempt for wilfully disobeying a pendente lite order, which directed the husband, inter alia, to pay temporary child support and maintenance. In an order dated February 5, 2008, the motion was referred to the trial court for decision. At trial, as mentioned, the issue of arrears owing under the pendente lite order was resolved except that the issue of attorneys' fees incurred as a result of the contempt application was to be submitted on papers.