Equitable Distribution of 85% of Property to Wife Reversed
Morille-Hinds v Hinds
2011 NY Slip Op 06120
Decided on August 2, 2011
Appellate Division, Second Department
The supreme court awarded husband only 15% of the value of certain marital property, including the parties’ real property, wife’s retirement accounts, and certain bank accounts. The supreme court also imputed to husband an income of $80,000 per year and ordered him to pay $233 per week in child support.
The Second Department reversed and remanded for new proceedings. In equitable distribution, both parties are entitled to fundamental fairnedd, and both economic and noneconomic contributions are to be taken into account. The court must consider all of the statutory factors and discuss how it relied on those factors in distributing the property. If it is evident that all of the relevant factors were considered and the reasons for the court’s decision are articulated, the court need not discuss each factor separately.
Here the lower court failed to set forth the factors it considered and only made conclusory assertions regarding husband’s contributions to the marital estate, disregarding evidence that he made significant contributions to the value of the marital property through his skilled labor. Husband’s contrinution to the care of the parties’ children also should have been taken into account.
In deciding income for child support purposes, the court is not bound by reported income but may look at actual earning capacity. Imputed income may be based on prior employment or what someone is capable of making given their education and opportunities. The court has considerable discretion, but the calulation must have a basis in law and fact. Here the determination that husband was capable of making $80,000 lacked support in the record. Moreover, the lower court failed to specify how it calculated support on income in excess of $80,000.
The case was remanded for new findings as to the distribution of the property of which husband had received only a 15% share, and the amount of child support.