        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

245
CA 13-01698
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


CRAIG B. WINSHIP, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BARBARA A. WINSHIP, DEFENDANT-RESPONDENT.


COTTER & COTTER P.C., WILLIAMSVILLE (DAVID B. COTTER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GERALD J. VELLA, SPRINGVILLE, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Cattaraugus County
(Michael L. Nenno, A.J.), entered December 21, 2012 in a divorce
action. The judgment, among other things, dissolved the marriage
between the parties and distributed the marital assets.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the weekly awards of child
support and maintenance to $210.85 and $290.40, respectively, and as
modified the judgment is affirmed without costs.

     Memorandum: In this matrimonial action, plaintiff husband
appeals from a judgment entered following a nonjury trial on issues
relating to child support, maintenance and equitable distribution.
Plaintiff contends that he should be afforded a new trial because
Supreme Court abdicated its judicial responsibilities by adopting,
almost verbatim, the proposed findings of fact submitted by
defendant’s attorney. According to plaintiff, the court’s error in
this regard is particularly prejudicial to him because defendant’s
proposed findings of fact fail to comply with CPLR 4213 (a), inasmuch
as they are impermissibly argumentative (see Charles F. Ryan & Son v
Lancaster Homes, Inc., 22 AD2d 186, 192, affd 15 NY2d 812; Capasso v
Capasso, 119 AD2d 268, 275). We conclude that reversal is not
warranted based on the court’s findings of fact.

     Of the 156 findings of fact proposed by defendant, only 4 contain
improper language, and the underlying factual assertions are not
challenged by plaintiff. Although the court adopted many of
defendant’s proposed findings, the court did not adopt the proposed
finding regarding plaintiff’s income. The court determined that the
amount of plaintiff’s income was $63,636.46, whereas defendant
proposed an amount of $77,170.42. As a result, the amounts of child
support and maintenance set forth in the court’s findings of fact are
less than those proposed by defendant. Under the circumstances, it
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                                                         CA 13-01698

cannot be said that the court abdicated its judicial responsibilities
(see Henery v Henery, 105 AD3d 903, 904; Noble v Noble, 78 AD3d 1386,
1387).

     Plaintiff further contends that the court’s award of maintenance
is excessive. We note at the outset that plaintiff failed to submit a
sworn financial statement, as required by Domestic Relations Law § 236
(B). He also failed to submit copies of his recent tax returns, his
W-2 statements, or his 1099 statements, as required by 22 NYCRR
202.16. Thus, plaintiff “cannot be heard to complain that the court
erred in drawing inferences favorable to defendant with respect to the
disputed financial issues,” including maintenance (Anfang v Anfang,
243 AD2d 340, 340; see Glass v Glass, 233 AD2d 274, 275). In any
event, considering the factors set forth in Domestic Relations Law §
236 (B) (6) (a), we conclude that the court’s award of maintenance, as
set forth in its findings of fact, does not constitute an abuse of
discretion (see generally Sharlow v Sharlow, 77 AD3d 1430, 1431; Smith
v Winter, 64 AD3d 1218, 1220, lv denied 13 NY3d 709). As plaintiff
points out, however, the judgment sets weekly maintenance at a higher
amount than that set forth in the court’s findings of fact, and we
therefore modify the judgment by reducing plaintiff’s weekly
maintenance obligation from $337.15 to $290.40 (see Berry v Williams,
87 AD3d 958, 961; Oliver v Oliver, 70 AD3d 1428, 1430).

     With respect to child support, plaintiff contends that the court
did not properly calculate defendant’s income because it failed to
consider funds she receives from land and gas leases. In his own
proposed findings of fact, however, plaintiff stated that defendant’s
income for support purposes was $18,334, which is the exact figure
determined by the court. Thus, plaintiff’s contention is unpreserved
for our review. Again, however, the judgment provides for a higher
award of child support than that set forth in the court’s findings of
fact, which control (see Berry, 87 AD3d at 961; Oliver, 70 AD3d at
1430). We thus further modify the judgment by reducing plaintiff’s
weekly child support obligation from $254.23 to $210.85.

     Plaintiff’s primary challenge to the equitable distribution award
relates to the court’s determination that Pine Top Plantation (Pine
Top), a 128-acre Christmas tree farm formerly owned and operated by
plaintiff’s deceased father, is marital property subject to equitable
distribution. The court determined that, pursuant to an installment
contract dated January 8, 2000, plaintiff purchased Pine Top from his
father. According to plaintiff, he and his father terminated the
installment contract, and he inherited the business and its land from
his father upon his father’s death in February 2010. In the joint tax
returns filed from 2000 through 2008, however, the parties depreciated
Pine Top’s equipment and property, and identified plaintiff as its
“proprietor.” Plaintiff signed those tax returns. As the Court of
Appeals has made clear, “[a] party to litigation may not take a
position contrary to a position taken in an income tax return”
(Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422). Here, plaintiff’s
tax returns are inconsistent with his position that his father owned
Pine Top after 2000, inasmuch as a party cannot depreciate property
that he or she does not own. In any event, giving deference to the
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                                                         CA 13-01698

trial court’s credibility determinations, we perceive no basis to
disturb the court’s finding that plaintiff acquired Pine Top from his
father during the marriage and prior to his father’s death.

     We have reviewed plaintiff’s remaining contentions and conclude
that they lack merit.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
