EVANS v. EVANS (2008)

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Prus, J.), entered July 19, 2005, which, after a nonjury trial, inter alia, directed him to pay the defendant the sum of $1,000 in monthly child support retroactive to the service of the pleadings, awarded him only 15% of the value of the marital residence, and awarded him only 10% of the defendant's pension as accrued prior to 1989.

ORDERED that the judgment is modified, on the facts, by deleting from the sixth decretal paragraph thereof the year “1989” and substituting therefor the year “1998”;  as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

 Since the plaintiff presented insufficient and incredible evidence to establish his income, the Supreme Court properly awarded child support based on the needs of the child (see Domestic Relations Law § 240[1-b][k];  Amsellem v. Amsellem, 15 A.D.3d 510, 510-511, 789 N.Y.S.2d 733).   Additionally, the Supreme Court properly directed that this award was to be retroactive to the date of the initial pleadings (see Amsellem v. Amsellem, 15 A.D.3d at 511, 789 N.Y.S.2d 733;  see also Nolfo v. Nolfo, 188 A.D.2d 451, 453, 590 N.Y.S.2d 902).

 The trial court has great flexibility in fashioning an equitable distribution of marital assets (see Smulczeski v. Smulczeski, 18 A.D.3d 734, 735, 797 N.Y.S.2d 97;  Niland v. Niland, 291 A.D.2d 876, 877, 737 N.Y.S.2d 214).   Equitable distribution does not necessarily mean equal distribution (see Groesbeck v. Groesbeck, 51 A.D.3d 722, 723, 858 N.Y.S.2d 707;  Falgoust v. Falgoust, 15 A.D.3d 612, 614, 790 N.Y.S.2d 532;   Rizzuto v. Rizzuto, 250 A.D.2d 829, 830, 673 N.Y.S.2d 200).   In light of the evidence that the plaintiff contributed minimally to the marriage, the court's determination with regard to the equitable distribution of the marital property was a provident exercise of discretion (see Arrigo v. Arrigo, 38 A.D.3d 807, 807-808, 834 N.Y.S.2d 534;  Chalif v. Chalif, 298 A.D.2d 348, 751 N.Y.S.2d 197;  Greene v. Greene, 250 A.D.2d 572, 672 N.Y.S.2d 746;  cf. Simmons v. Simmons, 301 A.D.2d 515, 753 N.Y.S.2d 384).

However, modification of the order is required in light of the concession in the defendant's brief that the date of the cutoff of the award of a share of the defendant's pension benefits to the plaintiff should be December 31, 1998, not December 31, 1989.

The plaintiff's remaining contentions are without merit.