Orofino v. Orofino

12 Citing cases

  1. Marlinski v. Marlinski

    111 A.D.3d 1268 (N.Y. App. Div. 2013)   Cited 8 times

    While the wife contends that her capital gains in 2009 are an anomaly that is not likely to recur, we conclude that the court properly took into consideration the volatility of the stock market when it imputed less than half of the wife's actual earnings to her as annual income. The decision whether to consider capital gains as income is a discretionary determination ( see Orofino v. Orofino, 215 A.D.2d 997, 998–999, 627 N.Y.S.2d 460,lv. denied86 N.Y.2d 706, 632 N.Y.S.2d 500, 656 N.E.2d 599;compare Matter of Gluckman v. Qua, 253 A.D.2d 267, 270, 687 N.Y.S.2d 460,lv. denied93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922with McFarland v. McFarland, 221 A.D.2d 983, 983–984, 634 N.Y.S.2d 290) and

  2. Gluckman v. Qua

    253 A.D.2d 267 (N.Y. App. Div. 1999)   Cited 48 times
    Hearing examiner should not have imputed the $87,937 increase in the father's stock portfolio as income for child support

    Because the record permits, and in the interest of judicial economy, we shall exercise our discretion to determine the appropriate child support award ( see, Matter of Ballard v. Davis, 248 A.D.2d 858; 860, lv denied 92 N.Y.2d 803; Chasin v. Chasin, 182 A.D.2d 862, 864; cf., Kimmel v. Mifflin, 240 A.D.2d 471). First, the record does not substantiate the Hearing Examiner's finding that respondent's annual income should include $87,937, representing the increased value of his stock portfolio from November 1996 through November 1997. The capital gains allegedly realized by respondent during this period was "`paper only'" income ( Orofino v. Orofino, 215 A.D.2d 997, 998-999, lv denied 86 N.Y.2d 706). Respondent earns a substantial salary in connection with the operation of his restaurant ( compare, McFarland v. McFarland, 221 A.D.2d 983) and an award of child support based on his income excluding these unrealized gains would hardly be unjust or inappropriate ( compare, Matter of Webb v. Rugg, 197 A.D.2d 777, 778-779), especially since there is no evidence in the record that respondent was attempting to avoid his child support obligation through calculated investment strategies — a concern raised by the Court in McFarland v. McFarland ( supra, at 984). According, this amount should not have been included in computing respondent's income, Thus, his income for the purpose of calculating child support is $244,827.36.

  3. Orofino v. Orofino

    86 N.Y.2d 706 (N.Y. 1995)

    Decided September 12, 1995 Appeal from (3d Dept: 215 A.D.2d 997) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED

  4. Wyser-Pratte v. Wyser-Pratte

    68 A.D.3d 624 (N.Y. App. Div. 2009)   Cited 5 times

    The court properly treated the couple's trading accounts with plaintiff's brokerage business as business assets. The accounts were managed solely by plaintiff ( see Orofino v Orofino, 215 AD2d 997, 998, lv denied 86 NY2d 706), who invested the funds in a manner intended to improve his companies' returns. As such, the accounts were an integral part of the business.

  5. Cupkova-Myers v. Myers

    63 A.D.3d 1268 (N.Y. App. Div. 2009)   Cited 2 times
    Reversing magistrate's finding that the father's income for child support should include the $96,801.54 "change in investment value" of his investment accounts

    Family Court denied the father's objections, and he now appeals. Initially, we agree with the father's argument that the Support Magistrate erroneously determined his income based primarily upon a "paper only," unrealized increase in investment value from one of his several investments ( see Matter of Gluckman v Qua, 253 AD2d 267, 270, lv denied 93 NY2d 814; Orofino v Oroftno, 215 AD2d 997, 998-999, lv denied 86 NY2d 706; see also Matter of Petkovsek v Snyder, 255 AD2d 960, 960). First, the Support Magistrate articulated no rationale for limiting its consideration of the father's income to that one particular account. Furthermore, while it is appropriate to impute income from nonincome-producing assets when a parent "voluntarily maintains his [or her] finances in a form that limits the income they produce" ( Kay v Kay, 37 NY2d 632, 636; see Matter of Webb v Rugg, 197 AD2d 777, 778; see also Matter of Gluckman v Qua, 253 AD2d at 270; McFarland v McFarland, 221 AD2d 983, 984), the Support Magistrate concluded that the father has not chosen to so limit his income here. Under these circumstances, we agree with the father that the parties' 2006 federal income tax return represents a better measure of his actual income ( see Family Ct Act § 413 [b] [5] [i]; Matter of Yarinsky v Yarinsky, 36 AD3d 1135, 1138; Liepman v Liepman, 279 AD2d 686, 688).

  6. Czaban v. Czaban

    44 A.D.3d 894 (N.Y. App. Div. 2007)   Cited 4 times

    The conduct underlying the wife's counterclaim for a divorce did not rise to the level where marital fault should have been considered in determining the equitable distribution of marital assets (see Orofino v Orofino, 215 AD2d 997, 998; Collura v Puglisi, 204 AD2d 589, 590; Kellerman v Kellerman, 187 AD2d 906, 907-908; Weilert v Weilert, 167 AD2d 463, 464; Blickstein v Blickstein, 99 AD2d 287, 292; cf. Brancoveanu v Brancoveanu, 145 AD2d 395, 398-399, cert denied 502 US 854). The wife's remaining contentions are without merit.

  7. Galvin v. Francis, 2003-06815 (2005)

    2003-06815, 2003-06817 (N.Y. App. Div. Dec. 25, 2005)

    ORDERED that one bill of costs is awarded to the plaintiff. The trial court correctly found that the defendant husband did not engage in egregious conduct sufficient to affect the equitable distribution award as to the marital home, which was jointly held by the parties ( see Orofino v. Orofino, 215 AD2d 997, 998; Kellerman v. Kellerman, 187 AD2d 906, 907-908). However, the trial court erroneously awarded him a distributive share of certain assets titled solely in the plaintiff wife's name. Except for the marital home, the parties kept their finances separate during the course of the marriage.

  8. Galvin v. Francis

    20 A.D.3d 550 (N.Y. App. Div. 2005)   Cited 6 times

    Ordered that one bill of costs is awarded to the plaintiff. The trial court correctly found that the defendant husband did not engage in egregious conduct sufficient to affect the equitable distribution award as to the marital home, which was jointly held by the parties ( see Orofino v. Orofino, 215 AD2d 997, 998; Kellerman v. Kellerman, 187 AD2d 906, 907-908). However, the trial court erroneously awarded him a distributive share of certain assets titled solely in the plaintiff wife's name. Except for the marital home, the parties kept their finances separate during the course of the marriage.

  9. K. v. B

    13 A.D.3d 12 (N.Y. App. Div. 2004)   Cited 33 times

    We simply should not, overtly or covertly, penalize B for doing what both spouses did: to live in accordance with their marital arrangement. Furthermore, while courts often uphold a reduction in a spouse's distributive share of particular assets to which that spouse made only minimal contributions ( see e.g. Arvantides v. Arvantides, 64 NY2d 1033; Orofino v. Orofino, 215 AD2d 997, lv denied 86 NY2d 706), here the court even reduced the husband's distributive share of those assets for which he had been primarily responsible. This overall 65-35 proportion, applicable to each asset in the marital estate, was clearly not based upon B's contribution to each of those assets, but rather, amounted to punishment for what the court viewed as misconduct.

  10. Carr v. Carr

    309 A.D.2d 1001 (N.Y. App. Div. 2003)   Cited 8 times

    Moreover, although respondent maintains that only 15 cases remain outstanding and that most of those cases are minor in nature, he submitted no evidence at the hearing regarding the value of the remaining cases. Inasmuch as respondent failed to demonstrate that the income did not inure to his personal benefit and that it will not be repeated, we cannot say that Family Court erred in including respondent's earnings from McClung, Peters and Simon as income (cf. Matter of Gluckman v. Qua, 253 A.D.2d 267, 270, lv denied 93 N.Y.2d 814; Orofino v. Orofino, 215 A.D.2d 997, 998-999, lv denied 86 N.Y.2d 706). Similarly lacking in merit is respondent's argument that petitioner failed to establish a change in circumstances warranting modification of the child support order.