Levi v. Levi

186 A.D.3d 1628

132 N.Y.S.3d 61

Brian LEVI, appellant,

v.Tara LEVI, respondent.

2017–07611

Index No. 201319/14

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

Submitted—January 9, 2020

September 30, 2020

Ian S. Mednick, P.C., Hauppauge, NY, for appellant.

Joseph J. Sciacca (Mauro Lilling Naparty, LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg ], of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, BETSY BARROS, ANGELA G. IANNACCI, 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, Nassau County (Robert A. Bruno, J.), entered June 20, 2017. The judgment of divorce, upon a decision of the same court dated February 8, 2017, made after a nonjury trial, inter alia, equitably distributed the parties' marital property, directed the plaintiff to pay to the defendant the sum of $1,899.91 per month for child support and the principal sum of $66,496.85 for child support arrears, and awarded the defendant attorney's fees in the sum of $75,000.

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by adding a provision thereto awarding the plaintiff a credit in an amount to be determined by the Supreme Court, Nassau County, representing the defendant's 21% pro rata share of the total sums paid by the plaintiff, pursuant to a pendente lite order of the same court dated September 3, 2014, for the unreimbursed medical, dental, and eyeglasses expenses for the defendant and the parties' children, and the expenses for tutors, therapists, and extracurricular expenses of the children, to offset the plaintiff's payment of future add-on child support expenses, and (2) by deleting the provision thereof awarding the defendant attorney's fees in the sum of $75,000, and substituting therefore a provision awarding the defendant attorney's fees in the sum of $68,000; as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, to calculate the credit due to the plaintiff for future add-on expenses in accordance herewith.

The parties were married in 2003 and have two children. On May 7, 2014, the plaintiff commenced this action for a divorce and ancillary relief. Pursuant to a pendente lite order dated September 3, 2014 (hereinafter the 2014 pendente lite order), the plaintiff was directed, inter alia, to pay the defendant $500 per month for temporary spousal maintenance and $750 per month for temporary child support, to pay all unreimbursed medical, dental, and eyeglasses expenses for the defendant and the children, and to pay expenses for certain therapists and tutors for the children. The court also directed the plaintiff to pay 100% of the fees for the appointed attorney for the children and the forensic evaluator, subject to reallocation at trial.

At trial, it was established that the plaintiff was employed full-time by the MTA, earning a salary of $99,000 annually. The defendant, a licensed optician, testified that she worked part-time at a neurovisual practice, earning $20 per hour, for an average of 25 hours per week. In a decision after trial dated February 8, 2017, the Supreme Court determined that the defendant's annual earnings of $26,000 represented 21% of the parties' combined income, and calculated the plaintiff's child support obligation under the Child Support Standards Act at $1,899.91 monthly, retroactive to the date of the defendant's application for pendente lite support. The court summarily denied the plaintiff's request to reallocate the pendente lite awards for maintenance and the fees for the attorney for the children and the forensic evaluator, as well as his request for a credit for his payments of the defendant's car insurance premiums. By judgment of divorce entered June 20, 2017, the court, inter alia, directed the plaintiff to pay the defendant the principal sum of $66,496.85 for child support arrears, awarded the defendant 50% of the marital portion of the plaintiff's pension fund, and awarded the defendant attorney's fees in the sum of $75,000. The plaintiff appeals.

"The factfinder's determination concerning the imputation of income to an obligor spouse is almost always based on the resolution of credibility, and therefore, is given great deference on appeal" ( Matter of Funaro v. Kudrick, 128 A.D.3d 695, 696, 8 N.Y.S.3d 433, quoting Khaimova v. Mosheyev, 57 A.D.3d 737, 737–738, 871 N.Y.S.2d 212 ). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in declining to impute income to the defendant greater than the $26,000 in earnings to which she testified at trial (see Strohli v. Strohli, 174 A.D.3d 938, 942, 107 N.Y.S.3d 324 ).

The plaintiff's contention that the Supreme Court erred in calculating child support arrears by utilizing his undisputed income at the time of trial also is without merit. The court was not required to reduce the plaintiff's retroactive child support obligation due to the fact that he had earned a lower salary in 2014 and 2015 as compared to his earnings at the time of trial (see generally Matter of Feliciano v. Elghouayel, 164 A.D.3d 1238, 1239, 83 N.Y.S.3d 587 ).

However, we agree with the plaintiff that the Supreme Court should have credited him for the 21% of unreimbursed medical, dental, and vision expenses, as well as expenses for certain tutors and therapists, that he had overpaid pursuant to the 2014 pendent lite order, which, in effect, set the plaintiff's pro rata share of these expenses at 100% (see Spiegel–Porco v. Porco, 127 A.D.3d 847, 848, 6 N.Y.S.3d 595 ). Given the strong public policy against restitution or recoupment of the overpayment of child support (see Hart v. Rosenthal, 173 A.D.3d 695, 697, 103 N.Y.S.3d 107 ), to the extent the plaintiff overpaid these expenses, such overpayment should be offset against future add-on expenses (see Matter of McGovern v. McGovern, 148 A.D.3d 900, 902, 50 N.Y.S.3d 408 ...