Opinion
692 CA 19-01281
11-13-2020
Lisa Ann SCOPPO, Plaintiff-Respondent, v. Bernard Charles SCOPPO, Defendant-Appellant.
KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT. MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay child support to plaintiff wife and distributed marital assets. The husband contends that Supreme Court abused its discretion in imputing income to him, for purposes of calculating his child support obligation, based on undisclosed income from a vehicle repair and storage business. We reject that contention. The trial court has "considerable discretion to ... impute an annual income to a [party] ..., and a court's imputation of income will not be disturbed so long as there is record support for its determination" ( Lauzonis v. Lauzonis , 105 A.D.3d 1351, 1351, 964 N.Y.S.2d 796 [4th Dept. 2013] [internal quotation marks omitted] ). A court " ‘may properly find a true or potential income higher than that claimed where the party's account of his or her finances is not credible’ " ( Sharlow v. Sharlow , 77 A.D.3d 1430, 1431, 908 N.Y.S.2d 287 [4th Dept. 2010] ), and "may impute income when the record supports a finding that the [party] has underreported earnings from a business" ( Matter of Susko v. Susko , 181 AD3d 1016, 1020-1021, 118 N.Y.S.3d 810 [3d Dept 2020] ; see Matter of Rubley v. Longworth , 35 AD3d 1129, 1130, 825 N.Y.S.2d 839 [3d Dept. 2006], lv denied 8 N.Y.3d 811, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007] ). We conclude that the evidence in the record here, including the husband's payment of business expenses and sales tax, supports the court's determination imputing additional annual income to him (see Susko , 181 A.D.3d at 1021-1022, 118 N.Y.S.3d 810 ; Matter of Sena v. Sena , 65 AD3d 1244, 1245, 885 N.Y.S.2d 738 [2d Dept. 2009] ). The husband's further contention with respect to the calculation of child support is not preserved for our review (see Brinson v. Brinson , 178 A.D.3d 1367, 1368, 116 N.Y.S.3d 812 [4th Dept. 2019] ; Barrett v. Barrett , 175 A.D.3d 1067, 1070, 108 N.Y.S.3d 626 [4th Dept. 2019] ; Winship v. Winship , 115 A.D.3d 1328, 1329, 984 N.Y.S.2d 247 [4th Dept. 2014] ). Finally, contrary to the husband's contention, we conclude on this record that the court did not err in determining that the proceeds from the sale of the parties' residence, which had been acquired by the parties prior to the marriage as joint tenants with rights of survivorship, should be divided equally (see generally RPAPL 901 [1] ; Quattrone v. Quattrone , 210 A.D.2d 306, 307, 619 N.Y.S.2d 773 [2d Dept. 1994] ).