NEBONS v. NEBONS

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

Janine E. NEBONS, respondent, v. Leonard NEBONS, appellant.

Decided: February 28, 2006

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, and WILLIAM F. MASTRO, JJ. Gary Schoer, Syosset, N.Y., for appellant. Daniel C. Mooney, P.C., Mattituck, N.Y., for respondent.

In a matrimonial action in which the parties were divorced by judgment dated March 4, 1993, the defendant appeals, as limited by his brief, from so much of a money judgment of the Supreme Court, Nassau County (Ross, J.), dated September 13, 2004, as, after a hearing, and upon an order of the same court dated August 24, 2004, awarded the plaintiff the sums of $59,700 for certain furniture and furnishings, $397,058.44 for retroactive child support and arrears, and $5,196 for an attorney's fee.

ORDERED that the money judgment is affirmed insofar as appealed from, with costs.

The defendant failed to comply with the provision in the parties' judgment of divorce that required him to provide proof of his income on a yearly basis, starting in 1993, in order for the plaintiff to effectuate applications for modification of child support for the parties' three children.   At a hearing in 2003, counsel for the defendant submitted that the defendant, an investment banker with a history of high earnings, was unemployed and had no income, while the plaintiff submitted evidence that the defendant was residing and working as a banker in Russia where he had raised billions of dollars in capital for emergent companies.

 In determining child support, the court may impute income based on a party's past income or earning potential (see Kalish v. Kalish, 289 A.D.2d 202, 733 N.Y.S.2d 717;  Gezelter v. Shoshani, 283 A.D.2d 455, 724 N.Y.S.2d 481;  Zabezhanskaya v. Dinhofer, 274 A.D.2d 476, 710 N.Y.S.2d 639;  Wildenstein v. Wildenstein, 251 A.D.2d 189, 674 N.Y.S.2d 665).

 The application of the statutory percentage of the Child Support Standards Act to parental income imputed to be more than $80,000 was a proper exercise of the Supreme Court's discretion (see Domestic Relations Law § 240 [1-b][c][2];  Matter of Lava v. Damianou, 10 A.D.3d 420, 780 N.Y.S.2d 789;  Farag v. Farag, 4 A.D.3d 502, 772 N.Y.S.2d 368;  Kosovsky v. Zahl, 272 A.D.2d 59, 707 N.Y.S.2d 168).

The Supreme Court also properly credited the plaintiff's evidence as to the value of household furnishings which the defendant was required to turn over to her and which were, instead, either missing, damaged, or destroyed (see Cuozzo v. Cuozzo, 2 A.D.3d 665, 768 N.Y.S.2d 636;  Felicello v. Felicello, 240 A.D.2d 625, 659 N.Y.S.2d 1003;  Griffin v. Griffin, 115 A.D.2d 587, 496 N.Y.S.2d 249;  Fassett v. Fassett, 101 A.D.2d 604, 475 N.Y.S.2d 154).

 In light of the defendant's refusal to comply with the judgment of divorce and previous orders directing him to provide proof of his income, thereby compelling the plaintiff to bring enforcement proceedings, the court's directive that he pay her attorney's fees was a proper exercise of discretion (see Domestic Relations Law § 237[b];  Bugliari v. Bugliari, 169 A.D.2d 697, 564 N.Y.S.2d 186).

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