        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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                                                         CA 13-00762

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
