Brown v Brown

Brown v Brown 2014 NY Slip Op 08776 Decided on December 16, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 16, 2014
Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman, Gische, JJ.
13798 303682/13

[*1] Jennifer Brown, Plaintiff-Appellant-Respondent,

v

Michael Brown, Defendant-Respondent-Appellant.

Laurence P. Greenberg, New York, for appellant-respondent.

Cadwalader, Wickersham & Taft LLP, New York (William Schwartz of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 5, 2013, which, to the extent appealed from as limited by the briefs, directed defendant husband to pay plaintiff wife monthly temporary taxable maintenance in the amount of $37,000, unanimously affirmed, without costs.

The motion court properly applied the formula set forth in Domestic Relations Law § 236(B)(5—a)(c)(2)(a) in calculating the award of temporary spousal maintenance to plaintiff wife. Specifically, the court listed all 19 of the enumerated factors, explained how the factors support an upward deviation from the $13,100 a month in guideline support, and found that $37,000 per month was not "unjust or inappropriate" under the circumstances (Lennox v Weberman, 109 AD3d 703 [1st Dept 2013]).

The court also properly imputed an annual income to the husband of $900,000 when it computed the maintenance award (see Lennox, 109 AD3d at 703-04; see also Hickland v Hickland, 39 NY2d 1, 4-6 [1976], cert denied 429 US 941 [1976]). The court took into account the effect of loss adjustments on the parties' tax returns, the family's monthly expenses, and the fact that the husband can manipulate his income as evidenced by the disparity between his W-2 income and the parties' monthly expenses.

In any event, the amount awarded is a proper accommodation between the reasonable needs of plaintiff and the financial ability of defendant, while taking into consideration the pre-separation standard of living (see Marfilius v Marfilius, 239 AD2d 299, 300 [1999]).

The court providently exercised its discretion in making the award of temporary maintenance taxable to the wife (see Lasry v Lasry, 180 AD2d 488, 489 [1st Dept 1992]; Siskind v Siskind, 89 AD3d 832, 833 [2nd Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 16, 2014

CLERK