Opinion
15627 Index No. 312174/11 Case No. 2021–02040
03-31-2022
Molly CASTELLOE, Plaintiff–Appellant, v. Laurence FONG, Defendant–Respondent.
Schwartz Sladkus Reich Greenberg, New York (Barry Abbott of counsel), for appellant. Aronson Mayefsky & Sloan, LLP, New York (Allan E. Mayefsky of counsel), for respondent.
Schwartz Sladkus Reich Greenberg, New York (Barry Abbott of counsel), for appellant.
Aronson Mayefsky & Sloan, LLP, New York (Allan E. Mayefsky of counsel), for respondent.
Gische, J.P., Oing, Scarpulla, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about May 10, 2021, which, to the extent appealed from as limited by the briefs, confirmed the Special Referee's report, dated February 5, 2021, awarding plaintiff monthly basic child support of $3,333.33, and, accordingly, awarded defendant a child support overpayment credit of $291,513.40 against his future share of add-on expenses, unanimously affirmed, without costs.
Initially, we find that the record on appeal is sufficient to permit review of the merits of the appeal (see Sanacore v. Sanacore, 74 A.D.3d 1468, 1469, 904 N.Y.S.2d 234 [3d Dept. 2010] ). In any event, we overlook plaintiff's technical failure to include the transcript of the court's decision from the bench in the record and take judicial notice of the electronically filed transcript (see Ninth Space LLC v. Goldman, 189 A.D.3d 686, 686, 134 N.Y.S.3d 718 [1st Dept. 2020] ).
The court providently exercised its discretion in imputing income to the parties. We see no reason to disturb the Referee's credibility determinations and factual findings, which are afforded great deference on appeal (see e.g. Matter of Anthony L. v. Bernadette R., 193 A.D.3d 510, 511, 148 N.Y.S.3d 18 [1st Dept. 2021] ). Contrary to plaintiff's contention, the Referee properly imputed income of $250,000 to defendant based on the cash gifts he received from his parents during the three years preceding the hearing, and omitting earlier gifts used to purchase his current residence and to pay the parties' legal fees (see Rostropovich v. Guerrand–Hermes, 18 A.D.3d 211, 211, 794 N.Y.S.2d 42 [1st Dept. 2005] ). The Referee properly rejected plaintiff's contention that additional income should be imputed to defendant based on his earning capacity, given the evidence demonstrating that the 60–year–old defendant was terminated from his job before the marriage and had not worked full-time since 2008, three years before the commencement of this divorce action. Plaintiff presented no expert testimony to establish defendant's earning capacity at the time of the hearing, and there was no evidence that defendant intentionally diminished his income to avoid his support obligations (see McBride v. McBride, 222 A.D.2d 563, 635 N.Y.S.2d 298 [2d Dept. 1995], lv denied 88 N.Y.2d 801, 644 N.Y.S.2d 493, 666 N.E.2d 1366 [1996] ).
Although plaintiff argues that the Referee relied on an outdated lifestyle analysis in fashioning a child support award and that the award does not capture the economic realities of raising now teenaged children, she failed to demonstrate that the award, based on a $250,000 income cap, is insufficient to meet the children's "actual needs" to live an "appropriate lifestyle" ( Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept. 2006] [internal quotation marks omitted]). The trial evidence reflects that the parties live a comfortable upper-middle-class lifestyle and that both parties have significant financial resources to support the use of a $250,000 cap (see Zappin v. Comfort, 155 A.D.3d 497, 499, 65 N.Y.S.3d 30 [1st Dept. 2017], appeal dismissed 31 N.Y.3d 1077, 78 N.Y.S.3d 274, 102 N.E.3d 1056 [2018] ).
Plaintiff argues that awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of this matter violates public policy because it will effectively extinguish his child support obligation. This argument is unavailing. While public policy forbids offsetting over payments against basic child support, it does not forbid offsetting against add-on expenses, ( Coull v. Rottman, 35 A.D.3d 198, 201, 828 N.Y.S.2d 295 [1st Dept. 2006], appeal dismissed 8 N.Y.3d 903, 834 N.Y.S.2d 75, 865 N.E.2d 1241 [2007] ). Given that plaintiff has sufficient financial resources at her disposal, we find that defendant is entitled to use any overpayment, retroactive to the agreed-upon date of January 27, 2017, to offset his share of future add-on expenses.
We have considered plaintiff's remaining contentions and find them unavailing.