        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
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                                                         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).
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                                                         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
