Bishop v. Bishop

216 N.Y.S.3d 744

Catherine BISHOP, appellant,

v.Kevin BISHOP, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 5, 2024

September 18, 2024

Ronald A. Phillips, P.C., Orangeburg, NY, for appellant.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of a judgment of divorce of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated November 24, 2020. The judgment of divorce, upon a decision of the same court dated January 10, 2018, made after a nonjury trial, inter alia, determined that a business in which the defendant had an interest was his separate property, imputed income to the defendant in the sum of only $100,000 per year, and awarded the plaintiff attorneys’ fees in the sum of only $20,000.

ORDERED that the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in August 2006, and they are the parents of three children. The plaintiff commenced this action for a divorce and ancillary relief in May 2015. The plaintiff appeals from stated portions of the judgment of divorce.

"Equitable distribution presents issues of fact to be resolved by the trial court and should not be disturbed on appeal unless shown to be an improvident exercise of discretion" (Santamaria v. Santamaria, 177 A.D.3d 802, 804, 112 N.Y.S.3d 751 [internal quotation marks omitted]; see Kaufman v. Kaufman, 189 A.D.3d 31, 36, 133 N.Y.S.3d 54). Here, the Supreme Court did not improvidently exercise its discretion in determining that the defendant’s ownership interest in a certain business, which he obtained prior to the marriage, was his separate property (see Domestic Relations Law § 236[B][1][d][1]; see also Turco v. Turco, 117 A.D.3d 719, 721, 985 N.Y.S.2d 261; Morales v. Inzerra, 98 A.D.3d 484, 949 N.Y.S.2d 433).

"[W]here one spouse contributed monies derived from separate property toward the acquisition of the marital residence," he or she generally will receive "a credit for that contribution" (Fields v. Fields, 15 N.Y.3d 158, 166, 905 N.Y.S.2d 783, 931 N.E.2d 1039; see Ferrante v. Ferrante, 186 A.D.3d 566, 568, 128 N.Y.S.3d 590). The Supreme Court did not improvidently exercise its discretion in awarding the defendant a credit in the sum of $35,000 for his contribution toward the down payment on the marital home made from his separate property (see Fields v. Fields, 15 N.Y.3d at 166, 905 N.Y.S.2d 783, 931 N.E.2d 1039; Alliger-Bograd v. Bograd, 180 A.D.3d 975, 977, 118 N.Y.S.3d 720).

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in imputing income to the defendant in the sum of only $100,000 for purposes of calculating child support and spousal maintenance. "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" (Steinberg v. Steinberg, 59 A.D.3d 702, 705, 874 N.Y.S.2d 230; see Nerayoff v. Rokhsar, 168 A.D.3d 1071, 1077, 93 N.Y.S.3d 96). "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" (Wesche v. Wesche, 77 A.D.3d 921, 923, 909 N.Y.S.2d 764).

The Supreme Court found that the defendant’s 2015 earnings were $80,000 and imputed to the defendant an additional $20,000 in annual income based, inter aha, on the parties’ tax records. The court providently exercised its discretion in imputing income to the...