Malkani v. Malkani

208 A.D.3d 863

173 N.Y.S.3d 675

Malina Linkas MALKANI, appellant,

v.Robert Gilman MALKANI, respondent.

2019–06043, 2019–06625

Index No. 61725/17

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

Argued—April 22, 2022

August 31, 2022

Dobrish Michaels Gross LLP, New York, NY (Robert Z. Dobrish and Sophie Heinlein of counsel), for appellant.

Miller Zeiderman & Wiederkehr, White Plains, NY (Evan Wiederkehr of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of (1) a decision of the Supreme Court, Westchester County (John P. Colangelo, J.), dated March 28, 2019, and (2) a judgment of divorce of the same court dated May 14, 2019. The judgment of divorce, upon the decision, made after a nonjury trial, inter alia, directed that the maintenance and child support payments to be made by the defendant shall commence on the first day of the month following the entry of the judgment of divorce, directed the defendant to pay to the plaintiff child support in the sum of only $2,074.46 per month and postdivorce maintenance in the sum of only $1,000 per month for a period of 12 months, allocated only 61% of the responsibility for statutory add-on expenses to the defendant and 39% of the responsibility for such expenses to the plaintiff, and declined to equitably distribute the security deposit being held by the landlord of the marital residence.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the judgment of divorce is modified, on the law, on the facts, and as a matter of discretion, (1) by deleting the provisions thereof directing that the maintenance and child support payments to be made by the defendant shall commence on the first day of the month following the entry of the judgment of divorce, and substituting therefor provisions directing that those payments shall be retroactive to August 8, 2017, (2) by deleting the provisions thereof awarding the plaintiff child support in the sum of $2,074.46 per month and post-divorce maintenance in the sum of $1,000 per month for a period of 12 months, (3) by deleting the provision thereof allocating 61% of the responsibility for statutory add-on expenses to the defendant and 39% of the responsibility for such expenses to the plaintiff, and (4) by adding a provision thereto awarding the plaintiff 50% of so much of the security deposit as is returned by the landlord upon termination of the lease on the marital residence; 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, Westchester County, for a new determination of the defendant's maintenance and child support obligations, including a new determination as to the duration of postdivorce maintenance, and a recalculation of each party's share of the responsibility for statutory add-on expenses, in accordance herewith, and the entry of an appropriate amended judgment of divorce thereafter.

The parties were married on December 31, 2007, and have three minor children. The instant action for a divorce and ancillary relief was commenced on August 8, 2017, with the filing of a summons and complaint demanding maintenance and child support. By order dated June 27, 2018, the issues of pendente lite maintenance and child support were deferred to the trial court.

After a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child support, commencing on the first day of the month following the entry of the judgment of divorce, rather than being retroactive to the date of the commencement of the action, when the plaintiff first sought maintenance and child support. In computing maintenance and child support, the court noted that the defendant was employed at an annual salary of $235,000 and, based upon the potential of a bonus, imputed to him a total annual income of $270,000. The court further noted that the plaintiff had been offered full-time employment with an annual salary of $85,000 by her current employer, and imputed that income to her. The court imputed additional annual income of $84,000 to the plaintiff, on the ground that her father was paying the rent for her current residence. Accordingly, maintenance and child support were based upon imputed income of $270,000 for the defendant and $169,000 for the plaintiff.

Based upon those figures, the computation of maintenance pursuant to Domestic Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court nevertheless awarded the plaintiff maintenance in the sum of $1,000 per month for a period of 12 months. Child support was awarded to the plaintiff based upon the defendant's imputed income of $270,000 and the plaintiff's imputed income of $169,000, utilizing the statutory cap of $148,000 for combined parental income. Based on the income imputed to each party, the court determined that the defendant would be responsible for 61% of all statutory add-on expenses and the plaintiff would be responsible for 39% of such expenses.

These determinations were reflected in a judgment of divorce dated May 14, 2019. The plaintiff appeals from stated portions of the judgment of divorce.

"A party's maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made," which, in this case, was the date of the commencement of this action ( Sinnott v. Sinnott, 194 A.D.3d 868, 878, 149 N.Y.S.3d 441 ; DiLascio v. DiLascio, 170 A.D.3d 804, 808, 95 N.Y.S.3d 588 ; Schack v. Schack, 128 A.D.3d 941, 943, 13 N.Y.S.3d 89 ; see Domestic Relations Law § 236[B][6][a] ; [7][a]). Accordingly, the award of spousal maintenance and child support to the plaintiff should have been retroactive to August 8, 2017.

In determining maintenance and child support obligations, " ‘[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’ " ( Tuchman v. Tuchman, 201 A.D.3d 986, 990, 162 N.Y.S.3d 414, quoting Duffy v. Duffy, 84 A.D.3d 1151, 1151–1152, 924 N.Y.S.2d 449 ). Imputation of income may be based upon employment history, future earning capacity, educational background, or money received from friends and relatives (see Duffy v. Duffy, 84 A.D.3d at 1152, 924 N.Y.S.2d 449 ).

In this case, the Supreme Court properly imputed annual...