Healy v. Healy , 859 N.Y.S.2d 51 ( 2008 )

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered March 23, 2007, which denied plaintiff husband’s motion for a downward modification of his spousal maintenance and child support awards, unanimously reversed, on the law, without costs, and the matter remitted to the Supreme Court for further proceedings consistent herewith.

Following a trial in August of 2005, judgment was entered in February 2007, awarding defendant wife, among other things, a divorce on her counterclaim, custody of the couple’s five children, $2,750 in spousal maintenance per month and $2,631 in child support per month. Flaintiff was represented by counsel at trial, and he promptly moved pro se for a downward modification after entry of judgment. At trial, his 2005 income tax return was admitted into evidence, indicating a substantial decrease in earnings. The court never indicated it was imputing income to plaintiff based on an attempt to avoid obligations or hide income. Accordingly, it was required to consider plaintiffs latest income tax return in determining the child-support award (Family Ct Act § 413 [1] [b] [5] [i]; Domestic Relations Law § 240 [1-b] [b] [5] [i]; see Miller v Miller, 18 AD3d 629, 631 [2005]), rather than income-averaging his reported income from 2001 to 2004 (see Wallach v Wallach, 37 AD3d 707, 708-709 [2007]). Plaintiff’s most recent tax return should also have been considered in determining the appropriate award for spousal maintenance. Concur—Lippman, P.J., Andrias, Nardelli, Acosta and DeGrasse, JJ.