Lee v. Lee, 18 A.D.3d 508 (N.Y. App. Div. 2005). · Go Syfert
Lee v. Lee, 18 A.D.3d 508 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
47 citation events (47 in the last 25 years) across 2 distinct courts.
Strongest positive: Matter of Akhtar v. Naeem (nyappdiv, 2024-04-25)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Akhtar v. Naeem
N.Y. App. Div. · 2024 · confidence medium
The excess amount of $977.58, paid for the middle child beyond August 8, 2022, was incorrectly applied by Family Court and must be credited to the father (see Lee v Lee, 18 AD3d 508, 511 [2d Dept 2005]).
discussed Cited as authority (rule) Matter of Alimonti v. Schwarz
N.Y. App. Div. · 2015 · confidence medium
Contrary to the mother’s contention, the father’s petition to credit his share of the oldest child’s college room and board against his basic child support obligation was consistent with the terms of the parties’ stipulation of settlement and, therefore, properly granted by the Family Court (see Matter of Levy v Levy, 52 AD3d 717, 718-719 [2008]; Lee v Lee, 18 AD3d 508, 512 [2005]; Vainchenker v Vainchenker, 242 AD2d 620 [1997]; Justino v Justino, 238 AD2d 549, 550 [1997]; Litwack v Litwack, 237 AD2d 580 [1997]; Reinisch v Reinisch, 226 AD2d 615 [1996]).
discussed Cited as authority (rule) Kosturek v. Kosturek
N.Y. App. Div. · 2013 · confidence medium
The defendant admitted in his statement of proposed disposition that he acquired some ownership interest in the property during the marriage (see 22 NYCRR 202.16 [h]; Lee v Lee, 18 AD3d 508, 512 [2005]), and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source.
discussed Cited as authority (rule) Kosturek v. Kosturek
N.Y. App. Div. · 2013 · confidence medium
The defendant admitted in his statement of proposed disposition that he acquired some ownership interest in the property during the marriage (see 22 NYCRR 202.16 [h]; Lee v Lee, 18 AD3d 508, 512 [2005]), and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source.
cited Cited as authority (rule) Scopelliti v. Scopelliti
N.Y. App. Div. · 2013 · confidence medium
His remaining contentions are without merit (see Lee v Lee, 18 AD3d 508, 512 [2005]; Wortman v Wortman, 11 AD3d 604, 607 [2004]).
cited Cited as authority (rule) Scopelliti v. Scopelliti
N.Y. App. Div. · 2013 · confidence medium
His remaining contentions are without merit (see Lee v Lee, 18 AD3d 508, 512 [2005]; Wortman v Wortman, 11 AD3d 604, 607 [2004]).
discussed Cited as authority (rule) Rich-Wolfe v. Wolfe
N.Y. App. Div. · 2011 · confidence medium
As such, the judgment must be modified to reduce the basic child support obligation “upon the date that [the older son] reaches the age of 21 or is otherwise emancipated,” the actual sum of child support due to be adjusted further based upon the amount of durational maintenance paid (Matter of Yarinsky v Yarinsky, 36 AD3d 1135, 1139 [2007]; see Azizo v Azizo, 51 AD3d 438, 440 [2008]; Lee v Lee, 18 AD3d 508, 511 [2005]).
cited Cited as authority (rule) Powers v. Wilson
N.Y. App. Div. · 2011 · confidence medium
Lee v Lee, 18 AD3d 508, 512 [2005]).
discussed Cited as authority (rule) Scott M. v. Ilona M.
N.Y. Sup. Ct. · 2011 · confidence medium
Since no prior order existed and, therefore, the monies were not reportable in the most recent tax year it is not counted as income (see Lee v Lee, 18 AD3d 508, 510 [2d Dept 2005] [“The court also erred in considering the maintenance to be received by the wife as her income for purposes of performing the CSSA calculations” (citations omitted)]; see also Matter of Krukenkamp v Krukenkamp, 54 AD3d 345, 346 [2d Dept 2008] [“The Child Support Standards Act requires the court to establish the parties’ basic child support obligation as a function of the ‘gross (total) income’ that is, or…
discussed Cited as authority (rule) Talty v. Talty
N.Y. App. Div. · 2010 · confidence medium
The Family Court also properly applied the statutory percentage of 17% to determine the father’s child support obligation for the parties’ remaining unemancipated child (see Domestic Relations Law § 240 [1-b] [b] [3] [i]; Bogannam v Bogannam, 60 AD3d 985, 986 [2009]; Levy v Levy, 39 AD3d 487, 488 [2007]; Lee v Lee, 18 AD3d 508, 511 [2005]).
discussed Cited as authority (rule) Thompson v. Malcolm
N.Y. App. Div. · 2010 · confidence medium
Under the circumstances of this case, the Family Court providently exercised its discretion in determining that the father should pay a pro rata share of that portion of his daughter’s educational expenses at Penn State University that did not include room and board (see Domestic Relations Law § 240 [1-b] [c] [7]; Lee v Lee, 18 AD3d 508, 512 [2005]; Chan v Chan, 267 AD2d 413, 414 [1999]; Matter of Cassano v Cassano, 203 AD2d 563 [1994]; Manno v Manno, 196 AD2d 488 [1993]).
discussed Cited as authority (rule) Gartmond v. Conway
N.Y. App. Div. · 2008 · confidence medium
However, in light of the fact that the record has been sufficiently developed, we deem it appropriate in the interest of efficiency and judicial economy to avert a remittal to the Support Magistrate, grant leave to appeal from that part of the Family Court’s order which remitted the matter to the Support Magistrate (see Family Ct Act § 1112 [a]; Matter of Schmitt v Berwitz, 228 AD2d 604 [1996]), and conduct our own review of the record (see Family Ct Act § 413; Lee v Lee, 18 AD3d 508, 511 [2005]).
discussed Cited as authority (rule) Krukenkamp v. Krukenkamp
N.Y. App. Div. · 2008 · confidence medium
The cases relied upon by the Family Court are inapposite because the maintenance award, in those cases, was made concurrently with the child support award, and thus, the prospective maintenance payments, when “viewed at the time of the decision, did not fall within the definition of ‘gross (total) income as should have been or should be reported in the most recent federal income tax return’ ” (Harrison v Harrison, 255 AD2d 490, 491 [1998], quoting Domestic Relations Law § 240 [1-b] [b] [5] [i]; see Shapiro v Shapiro, 35 AD3d 585, 586 [2006]; Lee v Lee, 18 AD3d 508, 510 [2005]).
discussed Cited as authority (rule) Levy v. Levy
N.Y. App. Div. · 2008 · confidence medium
Relevant to the matter at bar, Reinisch cited to Guiry v Guiry ( 159 AD2d 556 [1990]), which provided that the credit for college expenses includes solely those expenses that are associated with the cost of the child’s “room and board” (id. at 557; see Lincer v Lincer, 30 AD3d 381, 382 [2006]; Navin v Navin, 22 AD3d 474, 476 [2005]; Wortman v Wortman, 11 AD3d 604, 607 [2004]; Rohrs v Rohrs, 297 AD2d 317, 318 [2002]), not for college tuition costs (see Azizo v Azizo, 51 AD3d 438 [2008]; Lee v Lee, 18 AD3d 508, 512 [2005]).
discussed Cited as authority (rule) Cimons v. Cimons
N.Y. App. Div. · 2008 · confidence medium
“Such a credit [against child support payments] should not be calculated based on the cost of college tuition, which is beyond the realm of what is normally considered 'child support’ ” (Lee v Lee, 18 AD3d 508, 512 [2005]; see Matter of Dorcean v Longueira, 44 AD3d 770 [2007]; Wort-man v Wortman, 11 AD3d 604 [2004]; Guryn v Guryn, 308 AD2d 564 [2003]).
cited Cited as authority (rule) Azizo v. Azizo
N.Y. App. Div. · 2008 · confidence medium
Lee v Lee, 18 AD3d 508, 512 [2005]).
discussed Cited as authority (rule) Frost v. Frost
N.Y. App. Div. · 2008 · confidence medium
The court erred, however, in including the maintenance awarded to defendant as her income for the purpose of calculating the child support award (see Lee v Lee, 18 AD3d 508, 510 [2005]; see also Huber v Huber, 229 AD2d 904 [1996]).
discussed Cited as authority (rule) Ciampa v. Ciampa
N.Y. App. Div. · 2008 · confidence medium
Contrary to the plaintiff’s additional argument, the court providently exercised its discretion in limiting the combined parental income to $250,000 (see Matter of Brim v Combs, 25 AD3d 691, 693 [2006], Iv denied 6 NY3d 713 [2006]; Lee v Lee, 18 AD3d 508, 510 [2005]; Anonymous v Anonymous, 286 AD2d 585, 586 [2001]; Kosovsky v Zahl, 272 AD2d 59, 60 [2000]), and fixing child support for her as the children’s custodian at the sum of $1,490.38 per week.
discussed Cited as authority (rule) Levy v. Levy
N.Y. App. Div. · 2007 · confidence medium
In order to calculate the father’s child support obligation, the Supreme Court should have applied the statutory percentage to the combined parental income up to $80,000 and then, with respect to the balance of the combined parental income, “the Court should have (1) applied the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10), or (2) applied the standard ‘child support percentages’ specified in Domestic Relations Law § 240 (1-b) (b) (3), or (3) applied some combination of both the two approaches stated above” (Lee v Lee, 18 AD3d 508, 510 [2005]).
discussed Cited as authority (rule) Wallach v. Wallach
N.Y. App. Div. · 2007 · confidence medium
In determining the defendant’s income for child support purposes, the Supreme Court correctly deducted from the defendant’s income the maintenance he is required to pay (see Thoma v Thoma, 21 AD3d 1080, 1082 [2005]; Chalif v Chalif, 298 AD2d 348, 349 [2002]), but incorrectly included the maintenance payments in the plaintiffs income (see Shapiro v Shapiro, 35 AD3d 585 [2006]; Harrison v Harrison, 255 AD2d 490 [1998]) and should have provided for a corresponding adjustment in child support upon the expiration of the durational maintenance award (see Domestic Relations Law § 240 [1-b] [b] […
examined Cited as authority (rule) Tryon v. Tryon (3×)
N.Y. App. Div. · 2007 · confidence medium
The court here failed to determine how the combined parental income over $80,000 would be distributed for purposes of child support, and failed to articulate any reasons that might exist for ignoring this excess income in determining the parties’ basic support obligations (see Gilbert v Gilbert, 32 AD3d 414 [2006]; Jefferson v Jefferson, 21 AD3d 879, 880 [2005]; Lee v Lee, 18 AD3d 508, 510 [2005]).
discussed Cited as authority (rule) Iannone v. Iannone
N.Y. App. Div. · 2006 · confidence medium
However, the Supreme Court should have granted that branch of the motion which was to direct the husband to secure his obligation to provide pendente lite maintenance, but only to the extent of directing him to maintain any life insurance policies for the wife’s benefit existing at the time this action was commenced (see Lee v Lee, 18 AD3d 508, 512 [2005]; Comstock v Comstock, 1 AD3d 307, 308 [2003]; Koeth v Koeth, 309 AD2d 786, 787 [2003]).
discussed Cited as authority (rule) Griffin v. Griffin
N.Y. App. Div. · 2006 · confidence medium
In determining the amount of child support arrears, the Family Court did not take into account the appropriate reductions for the emancipation of each of these two children by operation of law (see Lee v Lee, 18 AD3d 508, 511 [2005]).
Retrieving the full opinion text from the archive…
Pamela B. Lee, Appellant-Respondent
v.
Kenneth Lee
Appellate Division of the Supreme Court of the State of New York.
May 9, 2005.
18 A.D.3d 508
2005 N.Y. App. Div. LEXIS 5099
Cited by 34 opinions  |  Published

[*509] In an action for a divorce and ancillary relief, (1) the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Orange County (Green, J.), entered January 8, 2003, which, inter aha, (a) imputed an annual income to the defendant in the sum of only $300,000, (b) awarded her the sum of only $3,100 per month in child support, (c) required her to pay 17% of the children’s unreimbursed medical expenses, (d) determined that the value of two corporations that were marital property was only $497,714, (e) awarded her only one third of the value of the corporations in equitable distribution, and (f) awarded the defendant a credit against his child support obligations for any college expenses that he might be called upon to pay, and (2) the defendant cross-appeals, as limited by his brief, from stated portions of the same judgment which, inter alia, (a) awarded the plaintiff non-durational maintenance in the sum of $5,000 per month, (b) failed to give him a credit for certain debt, and (c) imputed an annual income to him in the sum of $300,000.

Ordered that the judgment is modified, on the law, on the facts, and as a matter of discretion, by (1) deleting the 25th decretal paragraph thereof, inter alia, directing the defendant to pay to the plaintiff the sum of $3,100 per month in child support, (2) deleting the 27th decretal paragraph thereof awarding the defendant a credit against his child support obligations for any college expenses that he might be called upon to pay, (3) deleting the 26th decretal paragraph thereof requiring the defendant to pay 83% percent and the plaintiff to pay 17% of all unreimbursed medical and dental expenses and substituting therefore a provision requiring the defendant to pay 100% of such expenses, (4) deleting from the 10th and 32nd decretal paragraphs the sum of “$497,714” substituting therefor the sum of “$577,207,” representing the value of the husband’s interest in two corporations and by deleting from the 32nd decretal paragraph the sum of “$165,904.66” and substituting therefor the sum of “$192,402.33” representing one third of the[*510] value of the husband’s interest in the corporations, and (5) adding. thereto a provision requiring the defendant to maintain a life insurance policy for the benefit of the plaintiff in the sum of $1 million; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

Ordered that the matter is remitted to the Supreme Court, Orange County, for a new determination of the defendant’s monthly child support obligation calculated by application of the appropriate child support percentages (Domestic Relations Law § 240 [1-b] [b] [3]) applied to the sum of $200,000, for a determination of arrears, if any, and for the entry of an amended judgment accordingly; and it is further,

Ordered that the defendant shall continue to pay the sum of $3,100 per month in child support pending further determination of the Supreme Court.

We find no basis upon which to disturb the Supreme Court’s imputation of unreported income to the defendant in such an amount that his total annual gross income for the purposes of applying the terms of the Child Support Standards Act (hereinafter CSSA; Domestic Relations Law § 240 [1-b]) amounts to the sum of $300,000 per year (see Domestic Relations Law § 240 [1-b] [b] [5] [i]). However, we do agree with the defendant that the Supreme Court erred in proceeding to calculate his child support liability based on that amount.

The Supreme Court erred in failing to deduct from the sum of $300,000, noted above, the amount that the husband is to be required to pay in maintenance, that is, $60,000 per year (Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]; e.g., Rohrs v Rohrs, 297 AD2d 317 [2002]). The court also erred in considering the maintenance to be received by the wife as her income for purposes of performing the CSSA calculations (e.g. Harrison v Harrison, 255 AD2d 490 [1998]; Huber v Huber, 229 AD2d 904 [1996]). The Court should have applied the standard “child support percentages” defined by statute (Domestic Relations Law § 240 [1-b] [b] [3]) to the first $80,000 of the $240,000 in “combined parental income,” 100% of which is attributable to the husband, in accordance with the foregoing. With regard to the remaining $160,000, the Court should have (1) applied the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10), or (2) applied the standard “child support percentages” specified in Domestic Relations Law § 240 (1-b) (b) (3), or (3) applied some combination of both the two approaches stated above (see Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Matter of Lava v Damianou, 10 AD3d 420 [2004]; Jordan v Jordan, 8 AD3d 444 [2004]).

[*511] As an alternative to remitting the matter to the Supreme Court for a de novo determination of child support, in the interest of judicial economy, we believe that it is appropriate in the particular circumstances of this case to conduct our own review of the record in light of the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10). Considering, among other things, the amount of the husband’s income and the fact that the husband will ultimately be solely responsible for child support (see Domestic Relations Law § 240 [1-b] [f] [10]), we conclude that the standard “child support percentages” specified in Domestic Relations Law § 240 (1-b) (b) (3), should not be applied to the full $160,000 by which the husband’s income exceeds $80,000, but instead by $120,000 of that amount, so that his child support obligation should be determined based on application of the statutory child support percentages to the sum of $200,000 (see generally, Jordan v Jordan, supra).

The Supreme Court also should have provided for a method for reducing the defendant’s overall child support obligation as each child reaches the age of 21 or is otherwise emancipated. The parties had four minor children as of the time the action was commenced, and the defendant’s overall child support obligation should, of course, be diminished as each child reaches the age of majority. In the particular circumstances of this case, we find that, as the number of children that the defendant is obligated to support diminishes from four to one, upon the date that each child, in succession, becomes (or already has been) emancipated, the amount of child support owing should be based on the figure of $200,000, noted above, against which the diminishing statutory percentages pertaining to the number of children that the husband is obligated to support, i.e., 29%, 25%, and 17%, should be applied.

We agree with the plaintiff that the Supreme Court erred in ordering “that in the event the defendant is called upon to pay college expenses for any of the children, he shall be entitled to a dollar-for-dollar credit toward his child support.” The judgment in fact contains no provision requiring the husband to pay the cost of any “present or future. . .post-secondary, private, special, or enriched education for the child[ren]” (Domestic Relations Law § 240 [1-b] [c] [7]). Thus, the provision of the judgment quoted above is essentially premature and unnecessary, or at least it was at the time the judgment was entered. We do not pass on whether, at some later point, the court might properly direct the defendant, or the plaintiff, to contribute to cost of “post-secondary, private, special or enriched” education (Domestic Relations Law § 240 [1-b] [c] [7]; see Lee v Lee, 18 AD3d 513 [decided herewith 2005]).

[*512] Also, it is not the defendant’s overall child support obligation, which in this case encompasses his duty to support four children, that might properly be reduced on account of his payment of “college expenses” on behalf of one or more of those children; rather, the “college expenses” paid on behalf of one particular child, or on behalf of some particular children, could properly serve as a credit only with respect to so much of the defendant’s overall child support obligation as relates to such particular child or children.

Further, in respect to any credit against child support that might be granted in connection with the defendant’s payment of “college expenses,” any such credit should be calculated based solely on those expenses that are associated with the cost of room and board, or on other similar expenses of the kind that “child support” is normally intended to defray (see e.g. Wortman v Wortman, 11 AD3d 604 [2004]). Such a credit should not be calculated based on the cost of college tuition, which is beyond the realm of what is normally considered “child support.” Those cases in which, in one context or another, the courts have approved of the reduction of a parent’s child support obligation based on that parent’s payment of tuition expenses do not, in our view, reflect the general rule (see Comstock v Comstock, 1 AD3d 307 [2003]).

We also agree with the plaintiff that the court should have required the defendant to pay 100% of all unreimbursed medical and dental expenses (see Domestic Relations Law § 240 [1-b] [c] [5]).

The husband concedes on appeal as he did in his “statement of proposed dispositions” in the Supreme Court, that his 86% interest in one corporation, and 100% interest in the other, should have been valued at $577,207. The valuation proposed by the husband, as opposed to the lesser one found by the Supreme Court, more accurately reflects the value of the husband’s interest in the two corporations as of the date of the commencement of the action on November 12, 1999. Under all the circumstances presented, the Supreme Court correctly determined that the plaintiffs equitable share in this interest should be one third, rather than one half.

We also agree with the plaintiff that the court should have directed the defendant to maintain a life insurance policy for the plaintiff’s benefit in the sum of $1,000,000. The plaintiff will be depending on the defendant for the payment of the substantial amount of maintenance and child support noted above, and would be severely prejudiced in the event of the defendant’s death.

[*513] The parties’ remaining contentions are without merit. Prudenti, P.J., H. Miller, Ritter and Spolzino, JJ., concur.