HEALY v. HEALY (2008)

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered March 23, 2007, which denied plaintiff husband's motion for a downward modification of his spousal maintenance and child support awards, unanimously reversed, on the law, without costs, and the matter remitted to the Supreme Court for further proceedings consistent herewith.

Following a trial in August of 2005, judgment was entered in February 2007, awarding defendant wife, among other things, a divorce on her counterclaim, custody of the couple's five children, $2,750 in spousal maintenance per month and $2,631 in child support per month.   Plaintiff was represented by counsel at trial, and he promptly moved pro se for a downward modification after entry of judgment.   At trial, his 2005 income tax return was admitted into evidence, indicating a substantial decrease in earnings.   The court never indicated it was imputing income to plaintiff based on an attempt to avoid obligations or hide income.   Accordingly, it was required to consider plaintiff's latest income tax return in determining the child-support award (Family Ct. Act § 413[1][b][5][i];  Domestic Relations Law § 240[1-b][b][5][i];  see Miller v. Miller, 18 A.D.3d 629, 631, 796 N.Y.S.2d 97 [2005] ), rather than income-averaging his reported income from 2001 to 2004 (see Wallach v. Wallach, 37 A.D.3d 707, 708-709, 831 N.Y.S.2d 210 [2007] ).   Plaintiff's most recent tax return should also have been considered in determining the appropriate award for spousal maintenance.