SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

198 

CA 14-01381 

PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.

 

 

BRIAN MURPHY, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTINE MURPHY, DEFENDANT-APPELLANT. 

 

JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

JACK DANZIGER, BUFFALO, FOR PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Niagara County

(Frank Caruso, J.), entered December 20, 2013 in a divorce action. 

The judgment, among other things, awarded defendant maintenance and

child support. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the 2nd, 5th, 6th, 9th,

and 10th decretal paragraphs, and as modified the judgment is affirmed

without costs, and the matter is remitted to Supreme Court, Niagara

County, for further proceedings in accordance with the following

memorandum: Defendant wife appeals from a judgment of divorce that,

inter alia, distributed the marital assets and debt, and awarded her

maintenance and child support from plaintiff husband. We agree with

defendant that Supreme Court erred in failing to “set forth the

factors it considered and the reasons for its decision” relative to

the amount and duration of maintenance (Domestic Relations Law § 236

[B] [6] [b]; see Hendershott v Hendershott, 299 AD2d 880, 880;

Hartnett v Hartnett, 281 AD2d 900, 901; Zurek v Zurek, 255 AD2d 922,

922). In its decision, the court stated only that it awarded

maintenance “based upon the income the parties were earning at the

commencement of the action,” which is but one of the 20 factors

articulated in the statute (see § 236 [B] [6] [a]). The court ignored

numerous other relevant factors, including the length of the marriage

(18 years); defendant’s extended absence from the work force; her lack

of education and training; her childcare responsibilities during the

marriage, including for a child with special needs; and defendant’s

loss of health insurance upon dissolution of the marriage (see id.). 

It thus cannot be said that the court’s maintenance award “reflects an

appropriate balancing of [defendant]’s needs and [plaintiff]’s ability

to pay” (Torgersen v Torgersen, 188 AD2d 1023, 1024, lv denied 81 NY2d

709; cf. Salvato v Salvato, 89 AD3d 1509, 1510, lv denied 18 NY3d 811;

Burns v Burns, 70 AD3d 1501, 1503). 

Moreover, we agree with defendant that there is no evidentiary
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CA 14-01381 

support for the court’s determination that plaintiff’s income at the

time of commencement was $89,648, i.e., $70,648 in wages and $19,000

in disability benefits (see Matter of Borowicz v Mancini, 256 AD2d

713, 714). Although plaintiff asserted in his postargument submission

that his 2010 adjusted gross income was $70,648, he provided no

documentary support for that assertion. In addition, the court’s

computation of plaintiff’s income failed to include the $48,000 per

year he receives from his naval pension, which was in pay status at

the time of commencement (see generally Matter of Bow v Bow, 117 AD3d

1542, 1543-1544). The court therefore understated plaintiff’s income

in determining his maintenance obligation (see Weinheimer v

Weinheimer, 100 AD3d 1565, 1565-1566). Although “the authority of

this Court in determining issues of maintenance is as broad as that of

the trial court” (Reed v Reed, 55 AD3d 1249, 1251), the record

contains no competent proof of plaintiff’s income such as pay stubs,

financial affidavits, W-2 forms, or tax returns, thus precluding

meaningful appellate review (see Bow, 117 AD3d at 1544; Zurek, 255

AD2d at 922; Gorzalkowski v Gorzalkowski, 190 AD2d 1067, 1067). We

therefore modify the judgment by vacating the maintenance award, and

we remit the matter to Supreme Court to determine plaintiff’s income

and the amount and duration of maintenance, setting forth the

statutory factors it considered and the reasons for the award (see

Bow, 117 AD3d at 1544; Borowicz, 256 AD2d at 714; Zurek, 255 AD2d at

922; Gorzalkowski, 190 AD2d at 1067).

With respect to the child support award, we agree with defendant

that the court failed to make a clear custody determination with

respect to the two children, thus hindering meaningful review of the

award. In its decision, the court stated that the older child was

living with plaintiff and that the younger child was “rotating between

both houses equally.” At trial, however, both parties testified that

they had a “week-on week-off child custody arrangement” relative to

both children. In determining child support, the court apparently

accepted plaintiff’s unsubstantiated assertion in his posthearing

submission that the older child had moved in with him and “[would] not

be returning to [defendant]’s house.” With respect to the younger

child, the judgment states that, “by stipulation and agreement, the

parties shall share custody of [the younger child] with the

[d]efendant being designated the primary residential parent for school

purposes.” No such “stipulation and agreement” appears in the record

before us, and it is unclear whether “primary residential parent for

school purposes” also means primary residential custodian for child

support purposes (cf. Johnston v Johnston, 63 AD3d 1555, 1555). The

older child is not referenced in the judgment at all. Even assuming,

arguendo, that the court made an implicit custody determination, we

agree with defendant that the child support calculation is flawed. 

The court “failed to explain its application of the ‘precisely

articulated, three-step method for determining child support’ pursuant

to the Child Support Standards Act” (CSSA) (Hartnett, 281 AD2d at 901,

quoting Matter of Cassano v Cassano, 85 NY2d 649, 652; see McLoughlin

v McLoughlin, 63 AD3d 1017, 1019). Among other things, the court

failed to set forth the combined parental income or the parties’ pro

rata shares of the child support obligation (see McLoughlin, 63 AD3d
-3- 198 

CA 14-01381 

at 1019; Hartnett, 281 AD2d at 901), and failed to determine whether

to award child support for the amount of combined parental income in

excess of the statutory cap (see Domestic Relations Law § 240 [1-b]

[c] [2], [5]; [f]; Hartnett, 281 AD2d at 901). Inasmuch as the record

is insufficient to determine the appropriate amount of child support,

we further modify the judgment by vacating the custody determination

and child support award, and we direct the court on remittal to make a

custody determination with respect to both children and to recalculate

child support pursuant to the CSSA (see Sonbuchner v Sonbuchner, 96

AD3d 566, 568-569; McLoughlin, 63 AD3d at 1019). 

Defendant further contends that the court erred in crediting

plaintiff for marital debt he allegedly paid. We agree. “Domestic

Relations Law § 236 (B) (1) (c) provides that outstanding financial

obligations incurred during the marriage which are not solely the

responsibility of the spouse who incurred them may be offset against

the total marital assets to be divided. However, there must be an

offer of proof that the debts constitute marital expenses” (Feldman v

Feldman, 204 AD2d 268, 270). Here, the only reference to debt at the

hearing was plaintiff’s conclusory, self-serving testimony that he

“paid off the combined credit card debt.” Plaintiff presented no

proof of any such debt or his payment thereof at the hearing, and we

agree with defendant that the unauthenticated documents appended to

plaintiff’s posthearing submission and not received in evidence at

trial are not competent proof and, therefore, should not have been

relied upon by the court. Even if we were to accept those submissions

as competent proof, as the court apparently did, we would conclude

that the documents do not establish (1) that the debt was marital in

nature; (2) the amount of the debt; or (3) that plaintiff paid the

debt. We therefore conclude that the court erred in crediting

plaintiff $10,000 for his alleged payment of the parties’ credit card

debt, and we further modify the judgment accordingly (see Higgins v

Higgins, 50 AD3d 852, 853-854; Dermigny v Dermigny, 23 AD3d 429, 430-

431; Phillips v Phillips, 249 AD2d 527, 528).

We reject the further contention of defendant that the court

erred in refusing to distribute plaintiff’s disability benefits from

the Veterans’ Administration (VA). “[B]ecause VA disability benefits

are based solely upon a ‘disability resulting from personal injury

suffered or disease contracted in the line of duty’ (38 USC § 1131)

and do not represent deferred compensation (see, 38 USC §§ 1114,

1134), such benefits are separate property” and are “not subject to

equitable distribution” (Newman v Newman, 248 AD2d 990, 990; see

Domestic Relations Law § 236 [B] [1] [d] [2]; Ward v Ward, 101 AD2d

1006, 1007, lv dismissed 63 NY2d 770, 68 NY2d 805, lv denied 69 NY2d

603). With respect to plaintiff’s naval pension, although the court

awarded defendant her Majauskas share of those benefits, defendant

contends that she is entitled to retroactive payments of those

benefits from the date of commencement to the date of the judgment. 

That contention is without merit. The record establishes that

defendant had access to the naval pension benefits and used those

benefits to pay her bills during the pendency of the action (see

generally Tedesco v Tedesco, 41 AD3d 1246, 1247).
-4- 198 

CA 14-01381 

We agree with defendant, however, that the court abused its

discretion in awarding her only $2,000 in attorney’s fees given that

plaintiff is the monied spouse and there is no evidence in this record

that defendant engaged in dilatory tactics (see Suppa v Suppa, 112

AD3d 1327, 1329; Leonard v Leonard, 109 AD3d 126, 129-130). We

therefore further modify the judgment by vacating the award of

attorney’s fees, and we direct the court on remittal to reconsider

that award in light of the financial circumstances of the parties,

including the maintenance and distributive awards (see generally

DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881-882; McCarthy v McCarthy,

172 AD2d 1040, 1040). 

Finally, we conclude that, contrary to defendant’s contention,

the court did not abuse its discretion in declining to require

plaintiff to obtain life insurance to secure his support obligations

(see generally Bellizzi v Bellizzi, 107 AD3d 1361, 1364).

Entered: March 27, 2015 Frances E. Cafarell

Clerk of the Court