Welch v. Welch , 649 N.Y.S.2d 560 ( 1996 )

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant contends that Supreme Court erred in failing to credit him for one half of the mortgage payments he made on the marital residence after the commencement of this divorce action. We agree. The record shows that, after the action was commenced, defendant lived in one apartment in the marital residence and that another apartment in the marital residence was rented. In distributing the marital property, the court credited plaintiff with one half of the rental payments received by defendant and one half of the fair rental value of that portion of the marital residence occupied by defendant. Under those circumstances, the court should have credited defendant with $6,948.95, one half of the mortgage payments he made on the marital residence during that period.

The court also erred in crediting plaintiff with $750 for one half of the value of a truck awarded to defendant. The parties had stipulated that the truck was part of the personalty that defendant would receive.

Furthermore, the court erred in granting plaintiff both dependent exemptions for the parties’ two children. The record establishes that both parties were earning approximately the same amount of income and we discern no reason to grant plaintiff both dependent exemptions. Therefore, we modify the judgment to provide that defendant shall have the dependent exemption for the parties’ older child and plaintiff shall have the dependent exemption for the younger child.

We have reviewed defendant’s remaining contentions and conclude that they are without merit. We remit the matter to Supreme Court to recompute its equitable distribution award in light of the foregoing. (Appeal from Judgment of Supreme Court, Livingston County, Cicoria, J.—Divorce.) Present— Green, J. P., Lawton, Fallon, Callahan and Doerr, JJ.