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Supreme Court, Appellate Division, Second Department, New York.

Theodore ROHRS, Appellant, v. Mary Ann ROHRS, Respondent.

Decided: August 12, 2002

GLORIA GOLDSTEIN, J.P., LEO F. McGINITY, THOMAS A. ADAMS and SANDRA L. TOWNES, JJ. Taylor Walker, Westbury, N.Y., for appellant. E. Michael Rosenstock, P.C., Rockville Centre, N.Y., for respondent.

In an action for a divorce and ancillary relief, the plaintiff former husband appeals, as limited by his brief, from (1) stated portions of a judgment of the Supreme Court, Nassau County (Franco, J.), entered February 23, 2001, which, after a nonjury trial, inter alia, (a) imputed income to him for the purpose of calculating his child support obligation, (b) awarded the defendant former wife maintenance in the sum of $250 per week for six years, and (c) directed him to pay child support in the sum of $1,769 per month for the parties' two children, and (2) three Qualified Domestic Relations Orders of the same court, all entered February 23, 2001.

ORDERED that the appeals from the three Qualified Domestic Relations Orders are dismissed as abandoned, without costs or disbursements;  and it is further,

ORDERED that the judgment is modified by deleting the fifth, seventh, eighth, ninth, and so much of the tenth decretal paragraph thereof as relates to child support;  as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of the plaintiff's child support obligations in accordance herewith;  and it is further,

ORDERED that pending a new determination with respect to child support, the plaintiff shall pay to the defendant basic child support of $500 per month and continue to pay the defendant 72% of the expenses described in the seventh and ninth decretal paragraphs of the judgment.

 The Supreme Court properly imputed income to the plaintiff from his house-painting business.   That court properly found that the plaintiff's testimony with respect to this income was incredible.   A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed (see Matter of Thomas v. DeFalco, 270 A.D.2d 277, 703 N.Y.S.2d 530).

 In calculating the plaintiff's child support obligation, the Supreme Court failed to comply with Domestic Relations Law § 240[1-b][b][5][vii][C], by reducing the plaintiff's income by the amount of maintenance paid to the defendant before determining his child support obligation and directing a concomitant increase in the child support obligation upon the termination of the maintenance obligation (see Frei v. Pearson, 244 A.D.2d 454, 664 N.Y.S.2d 349;  Lekutanaj v. Lekutanaj, 234 A.D.2d 429, 651 N.Y.S.2d 154;  Polychronopoulos v. Polychronopoulos, 226 A.D.2d 354, 640 N.Y.S.2d 256).

 The Supreme Court properly directed the plaintiff to pay a proportionate share of the children's educational expenses.   However, we agree with the plaintiff that it was error to do so without including a provision reducing the plaintiff's level of basic child support for the elder child, for the period she is away from home and at college, by the amount he contributes for her room and board while at college (see Jablonski v. Jablonski, 275 A.D.2d 692, 713 N.Y.S.2d 184;  Sheridan v. Sperber, 269 A.D.2d 439, 702 N.Y.S.2d 894;  Guiry v. Guiry, 159 A.D.2d 556, 552 N.Y.S.2d 421).   We further note that considering the age of the parties' younger child, an award for child care expenses is inappropriate.

 Further, the trial court failed to set forth the basis for applying the child support percentage to the parental income in excess of $80,000.   While the statute explicitly vests discretion in the court to apply the stated percentage to income over $80,000, rather than apply the factors set forth in Domestic Relations Law § 240(1-b)(f), the exercise of discretion is subject to review for abuse, and “some record articulation of the reasons for the court's choice to apply the percentage is necessary to facilitate that review” (Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878).   In addition, the Supreme Court improperly failed to deduct New York City income taxes when calculating parental income (see Domestic Relations Law § 240[1-b][b][5][vii][G] ).

The plaintiff's remaining contentions are without merit.

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