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'Rodriguez' Offers Common-Sense Revisiting of Double Dipping
After a few years of confusion, New York's Appellate Division, Second Department has brought some sanity back to the relationship between asset distribution and spousal support. Rodriguez v. Rodriguez, 'AD3d', 2010 NY Slip Op 00944 (2d Dept. 2010). Rodriguez reinstates a principle previously established by many courts, including the state's highest court, the Court of Appeals: Where an income stream is converted into an asset and distributed, the income used is no longer also available for spousal support ' it is classified as an impermissible “double dipping” or “double counting.“ McSparron v. McSparron, 87 NY2d 275 (1995); Grunfeld v. Grunfeld, 94 NY2d 696 (2000). That precept, which had also applied to business distributions, was later twisted and mangled by the Court of Appeals' Keane v. Keane, 8 N.Y.3d 115 (2006), and its progeny. It now returns in the decision in Rodriguez.
Keane v. Keane
In Keane, it was found that the court's consideration of the husband's monthly rental income from his body shop repair business in the computation of an award of maintenance to the wife did not constitute impermissible double counting. This was held even though the capitalization of income method was used to appraise the full market value of rental property in calculating the wife's distributive award of marital property, since the rental property could be readily distinguished from its income-producing capacity.
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