DETERMINING INCOME IN DIVORCE - ACTUAL FINANCIAL CONDITION VERSUS ABILITY TO EARN

Volkerick v Volkerick 2017 NY Slip Op 06316 Decided on August 23, 2017 Appellate Division, Second Department:

"The defendant's contention that the Supreme Court erred by imputing an income to him of $130,000 when it calculated the maintenance and child support awards is without merit. " [A] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support'" (Matter of Solis v Marmolejos, 50 [*2]AD3d 691, 692, quoting Matter of Davis v Davis, 13 AD3d 623, 624). "The court is not bound by a party's actual reported income in applying the basic child support obligation, and instead could use that party's actual earning capacity or impute an amount onto the gross income reported by the party" (Matter of Solis v Marmolejos, 50 AD3d at 692). Here, the record demonstrated that the plaintiff is a high school graduate who has worked part-time as a cashier since 1998, earning $10,000 to $15,000 annually. The defendant is a college graduate who has had many years of experience working as an estimator for various construction companies. From 2005 until 2009, the defendant's annual salary was approximately $130,000. Although the defendant was unemployed for part of 2010, he earned approximately $47,000, which was supplemented by unemployment compensation and withdrawals from retirement accounts, raising his total income for 2010 to $186,582. The defendant worked for most of 2011 and had a yearly income of $130,000 from a combination of earnings and unemployment compensation. The defendant's contention that the amount of income imputed to him should be limited to his earnings from employment as reported on his 2010 tax return is without merit (see Domestic Relations Law § 240[1-b][b][5]). We conclude that the Supreme Court was within its discretion in considering the defendant's employment history and earning capacity and properly imputed an income of $130,000 to the defendant in determining an award of child support (see Fruchter v Fruchter, 29 AD3d 942, 943; Bittner v Bittner, 296 AD2d 516, 517).

Under the circumstances of this case, the Supreme Court also providently exercised its discretion in awarding spousal maintenance to the plaintiff in the sum of $1,500 per month for a period of 4 years. The court limited the duration of the award to a reasonable time to allow the plaintiff to obtain any necessary schooling and training to enable her to be self-supporting and regain self-sufficiency (see O'Brien v O'Brien, 66 NY2d 576, 585; Bains v Bains, 308 AD2d 557, 559). The defendant has failed to establish that the amount or duration of the spousal maintenance award was excessive and, as such, the court's determination will not be disturbed."