SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

272 

CA 10-01891 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

ALTON J. COLEMAN, JR., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

JOANNE COLEMAN, DEFENDANT-RESPONDENT. 

 

TERRENCE G. BARKER, ROCHESTER, FOR PLAINTIFF-APPELLANT. 

DENNIS R. DAWSON, GENESEO, FOR DEFENDANT-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Livingston County

(Philip A. Litteer, R.), entered December 11, 2009 in a divorce

action. The judgment, inter alia, directed plaintiff to pay weekly

maintenance, to pay maintenance arrears in two equal installments, and

granted defendant a distributive award totaling $5,500. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the sixth decretal

paragraph and as modified the judgment is affirmed without costs. 

Memorandum: Plaintiff appeals from a judgment of divorce that,

inter alia, directed him to pay $275 per week in maintenance and to

pay maintenance arrears in two equal installments, as well as granted

defendant a distributive award totaling $5,500. We reject plaintiff’s

contention that the Referee erred in imputing income of $12,000 to

him. It is well settled that “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 AD3d

1430, 1431). We see no basis to disturb the Referee’s conclusion that

plaintiff had been underreporting his income on his tax returns,

especially in light of plaintiff’s receipt of various items of

personal property for which he “bartered” but that he did not report

on his tax returns (see id.; Beroza v Hendler, 71 AD3d 615, 617, lv

dismissed 15 NY3d 905; Matter of Rubley v Longworth, 35 AD3d 1129,

1130-1131, lv denied 8 NY3d 811). 

We reject plaintiff’s further contention that the Referee abused

his discretion in setting the amount of maintenance, inasmuch as the

record demonstrates that he properly weighed the factors set forth in

Domestic Relations Law § 236 (B) (6) (see Frost v Frost, 49 AD3d 1150,

1150-1151; see generally Hartog v Hartog, 85 NY2d 36, 51). We agree

with plaintiff, however, that there is an inadequate basis in the

record to award defendant $2,000 per year for a period of two years

based on plaintiff’s decision to claim the parties’ son and
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CA 10-01891 

defendant’s daughter from a prior relationship on his individual tax

returns. No evidence was presented with respect to the benefit that

plaintiff received or the amount defendant would have obtained had she

been allowed to claim the children on her own tax returns. We

therefore modify the judgment accordingly (see generally Dietz v

Dietz, 203 AD2d 879, 882; Bofford v Bofford, 117 AD2d 643, 645, lv

dismissed 68 NY2d 808). 

We reject plaintiff’s contention that the Referee abused his

discretion in awarding $1,500 to defendant for funds withdrawn from

her bank account by plaintiff without her permission, inasmuch as

plaintiff’s own testimony established that those funds were

defendant’s separate property (cf. Askew v Askew, 268 AD2d 635, 637). 

Finally, we conclude that the Referee did not abuse his discretion in

directing plaintiff to pay maintenance arrears in two equal

installments three months apart (see Jarkow v Jarkow, 276 AD2d 748;

Matter of Mays v Mays, 51 AD2d 550). 

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court