Cannan v. Cannan

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In determining the amount of support payments a party is capable of paying, it is the party’s net income adjusted for business expenses that should form the basis of the calculations (Dobbins v Dobbins, 59 AD2d 548; Somach v Somach, 49 AD2d 1086 592; Burstein v Burstein, 7 AD2d 902). We are not bound by the husband’s assertions as to his expenses and find the court-appointed examiner’s determination of his net income supported by the record. We also find that the husband’s contention that his wife is in a better financial position to pay her attorney’s fees is without merit. The examiner incorrectly determined the amounts husband and wife were entitled to out of their joint banking account. When the husband took possession of the passbook on July 5, 1979, the joint account contained $7,077.07. According to the husband’s uncontested testimony on cross-examination, he spent $1,863.49 on expenses related to the marital residence and gave his wife $700 out of an additional $1,000 withdrawal. Of the remaining $4,213.58, there was a total of $2,077.45 in unexplained withdrawals and expenditures by the husband leaving a remaining balance of $2,136.13. Because it was a joint account, each is entitled to one half, less the expenditures for the marital residence, for a total of $2,606.79 each. The wife has already received $700; consequently she is entitled to $1,906.79. The husband has already received $300 and $2,077.45 for a total of $2,377.45, which is $229.34 less than that to which he is entitled. Because the husband has turned over the balance of the account to his wife, as ordered by Family Court, we find that she has been unjustly enriched by $229.34. Consequently, that part of the order requiring the husband to pay her an additional $863.87 is reversed and the order is modified directing the wife to pay her husband $229.34. (Appeal from order of Monroe County Family Court — support.) Present —• Dillon, P.J., Simons, Hancock, Jr., Callahan and Moule, JJ.