SIMMONS v. SIMMONS (2008)

 In appeal No. 1, plaintiff appeals from an order determining the financial interests of the parties after a previous judgment of divorce was entered and, in appeal No. 2, plaintiff appeals from that part of an order that awarded defendant counsel fees in the amount of $2,000 for postjudgment enforcement proceedings.   Contrary to plaintiff's contention in appeal No. 1, we conclude that the record supports Supreme Court's distributive award to defendant of 15% of plaintiff's enhanced earning capacity (see Martinson v. Martinson, 32 A.D.3d 1276, 1277, 821 N.Y.S.2d 537;  Carman v. Carman, 22 A.D.3d 1004, 1006, 802 N.Y.S.2d 558).   We are unable to ascertain on the record before us, however, whether the court's reduction of the distributive award, as stated by the court, was sufficient to avoid the double counting of plaintiff's enhanced income in the award of durational maintenance to defendant over a period of five years.   Indeed, “the court's decision does not make clear whether the maintenance award included amounts corresponding to portions of defendant's income that were capitalized for purposes of determining the distributive award” (Fruchter v. Fruchter, 288 A.D.2d 942, 944, 732 N.Y.S.2d 810;  see Anderson v. Anderson, 286 A.D.2d 967, 969, 731 N.Y.S.2d 108).   We therefore modify the order in appeal No. 1 by vacating the amount awarded for maintenance, and we remit the matter to Supreme Court to determine maintenance and to set forth the basis for its award of maintenance, taking into account the distributive award for plaintiff's enhanced earning capacity.

 We agree with plaintiff that the amounts awarded for child support and arrears also must be vacated.   We conclude that “neither the record nor the court's ‘record articulation’ ․ is sufficient to support the court's application of the Child Support Standards Act (CSSA) percentage to all of the combined parental income in excess of $80,000” (Matter of Malecki v. Fernandez, 24 A.D.3d 1214, 1215, 809 N.Y.S.2d 316;  see Irene v. Irene [appeal No. 2], 41 A.D.3d 1179, 1181, 837 N.Y.S.2d 797).   We therefore further modify the order in appeal No. 1 by vacating the amounts awarded for child support and arrears, and we direct Supreme Court upon remittal to determine plaintiff's obligation for child support and arrears in compliance with the CSSA, following a further hearing, if necessary (see Malecki, 24 A.D.3d at 1215, 809 N.Y.S.2d 316;  see also Irene, 41 A.D.3d at 1181, 837 N.Y.S.2d 797).   We have considered plaintiff's remaining contentions in appeal No. 1 and conclude that they are lacking in merit.

Finally, we conclude with respect to appeal No. 2 that plaintiff failed to preserve for our review his contention that the court erred in awarding counsel fees in the absence of evidence to substantiate them, and thus that contention is not properly before us (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the amounts awarded for maintenance, child support and arrears and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Niagara County, for further proceedings.

MEMORANDUM: