SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

442 

CA 13-00762 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ. 

 

LOTFI BELKHIR, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

SOUAD AMRANE-BELKHIR, DEFENDANT-APPELLANT. 

 

LEONARD A. ROSNER, ROCHESTER, FOR DEFENDANT-APPELLANT. 

LOTFI BELKHIR, PLAINTIFF-RESPONDENT PRO SE. 

 

Appeal from an amended judgment of the Supreme Court, Ontario

County (William F. Kocher, A.J.), entered August 10, 2012 in a divorce

action. The amended judgment, among other things, distributed the

marital property. 

It is hereby ORDERED that the amended judgment so appealed from

is unanimously modified on the law by reducing the credit given to

plaintiff for various payments he made by $12,112.95 and by increasing

plaintiff’s child support obligation in an amount to be determined

upon the calculation of the appropriate FICA deductions from

plaintiff’s actual and imputed income, and the matter is remitted to

Supreme Court, Ontario County, for that purpose. 

Memorandum: Defendant wife appeals from an amended judgment of

divorce entered, in part, upon a referee’s amended report that decided

issues of child support, maintenance and equitable distribution. We

note at the outset that defendant’s notice of appeal recites that she

is appealing from the judgment of divorce and that the notice of

appeal was filed prior to entry of the amended judgment. “We

nevertheless exercise our discretion to treat the notice of appeal as

valid and deem the appeal as taken from the amended [judgment]”

(Matter of Mikia H. [Monique K.], 78 AD3d 1575, 1575, lv dismissed in

part and denied in part 16 NY3d 760; see CPLR 5520 [c]; Adams v

Daughtery, 110 AD3d 1454, 1455). 

We agree with defendant that Supreme Court erred insofar as it

credited plaintiff with 100% of the payments he made for the mortgage,

utilities and other household expenses for the period between the

commencement of this divorce action and the date on which plaintiff

moved out of the marital residence. During the pendency of a divorce

action, when “a party has paid the other party’s share of what proves

to be marital debt, such as the mortgage, taxes, and insurance on the

marital residence, reimbursement is required” (Le v Le, 82 AD3d 845,

846; see Myers v Myers, 87 AD3d 1393, 1394-1395). Because plaintiff
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lived in the marital residence after this action was commenced, he “is

[only] entitled to a credit in the amount of one half of his household

expenditures during the period he occupied the marital residence”

(Southwick v Southwick, 214 AD2d 987, 988). As a result, the mortgage

payments and other household expenses plaintiff paid, totaling

$24,225.90, should be reduced by 50% to reflect plaintiff’s enjoyment

of the benefits of those payments, and thus the amount credited to him

should be reduced by $12,112.95. We therefore modify the amended

judgment accordingly.

We reject defendant’s further contention that the court erred in

denying her request for maintenance. In deciding whether to award

maintenance, the court “must consider the payee spouse’s reasonable

needs and predivorce standard of living in the context of the other

enumerated statutory factors” (Hartog v Hartog, 85 NY2d 36, 52; see

Domestic Relations Law § 236 [B] [6] [a]). On this record, it cannot

be said that the court abused its discretion in denying defendant’s

request for maintenance (see Smith v Winter, 64 AD3d 1218, 1220, lv

denied 13 NY3d 709). 

Contrary to defendant’s further contentions, the court did not

abuse its discretion in either failing to impute income to plaintiff

for the first six months after he was terminated by his company or in

thereafter imputing income to plaintiff of only $140,000 per year. 

“[I]n determining a party’s child support obligation, a court need not

rely upon the party’s own account of his or her finances, but may

impute income based upon the party’s past income or demonstrated

earning potential” (Filiaci v Filiaci, 68 AD3d 1810, 1811 [internal

quotation marks omitted]; see Irene v Irene [appeal No. 2], 41 AD3d

1179, 1180). “ ‘Trial courts . . . possess considerable discretion to

impute income in fashioning a child support award’ . . . , and a court

is not required to find that a parent deliberately reduced his or her

income to avoid a child support obligation before imputing income to

that parent” (Irene, 41 AD3d at 1180; see Sharlow v Sharlow, 77 AD3d

1430, 1431). “[A] court's imputation of income will not be disturbed

so long as there is record support for its determination” (Lauzonis v

Lauzonis, 105 AD3d 1351, 1351). Here, the record supports the court’s

determination that plaintiff’s termination was not his fault, and thus

it was reasonable to thereby allow him six months in which to find

other employment. Moreover, when considering plaintiff’s education,

experience and long-term earning history, it cannot be said that the

court abused its discretion by refusing to impute income to plaintiff

that was greater than $140,000 per year. 

We agree with defendant, however, that the court erred in two

respects in the manner in which plaintiff’s child support obligation

was calculated. Pursuant to Domestic Relations Law § 240 (1-b) (b)

(5) (vii) (H), “federal insurance contributions act (FICA) taxes

actually paid” shall be deducted from income prior to determining the

combined parental income (see Manno v Manno, 196 AD2d 488, 490-491). 

The social security part of FICA is paid by taxpayers up to a specific

income cap, and the amount of that cap generally increases year to

year. Here, the court erred in its FICA calculation for 2011 because,

after the court had imputed income of $140,000 to plaintiff for 2011,
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CA 13-00762 

it calculated plaintiff’s FICA deduction as if he would have paid the

social security portion of FICA on the full amount of his imputed

income, which was considerably higher than the social security wage

limit in 2011. We also conclude that the court erred in deducting

FICA from plaintiff’s Canadian income before calculating child support

given that those taxes were not paid on the income he earns in Canada. 

“Since FICA taxes should be deducted only from income upon which FICA

taxes are ‘actually paid’ prior to applying the provisions of Domestic

Relations Law § 240 (1-b) (c)” (Kaufman v Kaufman, 102 AD3d 925, 927),

the child support calculations based on plaintiff’s Canadian income

were erroneous. Plaintiff argues that deducting FICA from his

Canadian income is appropriate because he pays taxes in Canada that

are the equivalent of FICA. Even assuming, arguendo, that he is

correct, we cannot determine on this record what those taxes are and

whether or how much of those taxes would properly be deducted from his

Canadian income. We therefore further modify the amended judgment by

increasing the amount of plaintiff’s child support obligation based on

the court’s FICA errors with respect to plaintiff’s 2011 imputed

income and the income he earns in Canada, in a sum to be determined

upon remittal of the matter to Supreme Court for recalculation in

accordance with our decision herein. 

We reject defendant’s further contention that the award of

attorney’s fees of $20,000 was inadequate. “The evaluation of what

constitutes reasonable [attorney’s] fees is a matter within the sound

discretion of the trial court” (Rooney v Rooney [appeal No. 3], 92

AD3d 1294, 1296, lv denied 19 NY3d 810 [internal quotation marks

omitted]), and there is nothing in this record that would suggest that

the court abused its discretion in awarding attorney’s fees. We have

reviewed defendant’s remaining contentions and conclude that none

require further modification of the amended judgment of divorce. 

Entered: June 20, 2014 Frances E. Cafarell

Clerk of the Court