         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
272
CA 10-01891
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


ALTON J. COLEMAN, JR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOANNE COLEMAN, DEFENDANT-RESPONDENT.


TERRENCE G. BARKER, ROCHESTER, FOR PLAINTIFF-APPELLANT.

DENNIS R. DAWSON, GENESEO, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Livingston County
(Philip A. Litteer, R.), entered December 11, 2009 in a divorce
action. The judgment, inter alia, directed plaintiff to pay weekly
maintenance, to pay maintenance arrears in two equal installments, and
granted defendant a distributive award totaling $5,500.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sixth decretal
paragraph and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff appeals from a judgment of divorce that,
inter alia, directed him to pay $275 per week in maintenance and to
pay maintenance arrears in two equal installments, as well as granted
defendant a distributive award totaling $5,500. We reject plaintiff’s
contention that the Referee erred in imputing income of $12,000 to
him. It is well settled that “a ‘court may properly find a true or
potential income higher than that claimed where the party’s account of
his or her finances is not credible’ ” (Sharlow v Sharlow, 77 AD3d
1430, 1431). We see no basis to disturb the Referee’s conclusion that
plaintiff had been underreporting his income on his tax returns,
especially in light of plaintiff’s receipt of various items of
personal property for which he “bartered” but that he did not report
on his tax returns (see id.; Beroza v Hendler, 71 AD3d 615, 617, lv
dismissed 15 NY3d 905; Matter of Rubley v Longworth, 35 AD3d 1129,
1130-1131, lv denied 8 NY3d 811).

     We reject plaintiff’s further contention that the Referee abused
his discretion in setting the amount of maintenance, inasmuch as the
record demonstrates that he properly weighed the factors set forth in
Domestic Relations Law § 236 (B) (6) (see Frost v Frost, 49 AD3d 1150,
1150-1151; see generally Hartog v Hartog, 85 NY2d 36, 51). We agree
with plaintiff, however, that there is an inadequate basis in the
record to award defendant $2,000 per year for a period of two years
based on plaintiff’s decision to claim the parties’ son and
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                                                         CA 10-01891

defendant’s daughter from a prior relationship on his individual tax
returns. No evidence was presented with respect to the benefit that
plaintiff received or the amount defendant would have obtained had she
been allowed to claim the children on her own tax returns. We
therefore modify the judgment accordingly (see generally Dietz v
Dietz, 203 AD2d 879, 882; Bofford v Bofford, 117 AD2d 643, 645, lv
dismissed 68 NY2d 808).

     We reject plaintiff’s contention that the Referee abused his
discretion in awarding $1,500 to defendant for funds withdrawn from
her bank account by plaintiff without her permission, inasmuch as
plaintiff’s own testimony established that those funds were
defendant’s separate property (cf. Askew v Askew, 268 AD2d 635, 637).
Finally, we conclude that the Referee did not abuse his discretion in
directing plaintiff to pay maintenance arrears in two equal
installments three months apart (see Jarkow v Jarkow, 276 AD2d 748;
Matter of Mays v Mays, 51 AD2d 550).




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
