Ordered that the judgment is modified, on the law, the facts, and as a matter of discretion, by (1) deleting the provision thereof awarding the defendant sole decision-making authority with respect to the children’s extracurricular activities, religious upbringing, and schooling and substituting therefor a provision prohibiting the plaintiff from scheduling any extracurricular activity for the children during the defendant’s scheduled parenting time without his consent, (2) deleting the provision thereof providing that the defendant will have visitation three weekends per month and substituting therefor a provision providing that the defendant will have visitation two weekends per month, (3) deleting the provision thereof providing that the defendant will have visitation one night during the week prior to the weekend on which he does not have visitation and substituting therefor a provision providing that the defendant will have visitation on Tuesday and Thursday of each week from the conclusion of the children’s school day until 8:00 p.m., (4) deleting the provision thereof awarding the defendant a distributive award in the amount of $34,950 and substituting therefor a provision awarding the defendant a distributive award in the amount of $24,969, and (5) deleting the provision thereof denying the plaintiffs request for maintenance; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements; and it is further,
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for (1) a new determination with respect to the plaintiff’s request for maintenance without considering as income to the plaintiff the income stream derived from her enhanced earning capacity, the value of which was distributed to the defendant, and (2) an evidentiary hearing on the defendant’s motion to hold the plaintiff in contempt.
We have recognized that when joint custody is not possible because of the antagonistic relationship between the parties (see Braiman v Braiman, 44 NY2d 584, 591 [1978]; Robinson v Robinson, 111 AD2d 316, 318 [1985]), it may be appropriate, depending upon the particular circumstances of the case, to grant some custodial decision-making authority to the noncustodial parent (see Matter of Ring v Ring, 15 AD3d 406 [2005]; Matter of Penninipede v Penninipede, 6 AD3d 445, 446 [2004]).
The Supreme Court also improvidently exercised its discretion in providing that the defendant have visitation three weekends each month plus one night during the week preceding the weekend on which he did not have visitation. The extent to which the noncustodial parent may exercise parenting time is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child (see Matter of Kachelhofer v Wasiak, 10 AD3d 366 [2004]; Matter of Levande v Levande, 308 AD2d 450, 451 [2003]; Matter of Morash v Minucci, 299 AD2d 486, 487 [2002]), consistent with the concurrent right of the child and the noncustodial parent (see Weiss v Weiss, 52 NY2d 170, 175 [1981]; Matter of Ritz v Otero, 265 AD2d 560 [1999]; Matter of Rodriguez v Gasparino, 218 AD2d 739, 740 [1995]) to meaningful time together (see
The Supreme Court correctly concluded that the parties’ investment account, funded with the proceeds of an action commenced by the defendant to recover damages for personal injuries he sustained prior to the marriage, is his separate property, even though he placed those funds in an investment account titled jointly with the plaintiff. The proceeds of an action to recover damages for personal injuries are the separate property of the injured spouse (see Domestic Relations Law § 236 [B] [1] [d] [2]; Gundlach v Gundlach, 223 AD2d 942 [1996]). When spouses hold property in a joint account, however, a rebuttable presumption arises that both have an undivided one-half interest in it (see Banking Law § 675 [b]; Tayar v Tayar, 208 AD2d 609, 610 [1994]). Thus, by depositing the proceeds of his personal injury lawsuit in an account titled jointly with the plaintiff, the defendant created the presumption that the funds are marital (see Lagnena v Lagnena, 215 AD2d 445, 446 [1995]; Di Nardo v Di Nardo, 144 AD2d 906). This presumption may be overcome, however, by evidence that the account was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely in the separate property of the spouse who claims the separate interest (see Wade v Steinfeld, 15 AD3d 390, 391 [2005]; Lagnena, supra; Giuffre v Giuffre, 204 AD2d 684, 685 [1994]; Filippi v Filippi, 53 AD2d 658, 659 [1976]; Phillips v Phillips, 70 AD2d 30, 38 [1979]). Here, the defendant overcame the presumption by establishing that he was the sole beneficiary of the proceeds of the personal injury action, that the investment account into which the funds were deposited, although in joint names, was managed solely by him, and that the plaintiff had no involvement with the account other than one withdrawal which she made at the defendant’s direction (see Garner v Garner, 307 AD2d 510 [2003]).
The Supreme Court providently exercised its discretion in
The record supports the Supreme Court’s determination to impute an annual income of $60,000 to the plaintiff. Maintenance and child support are determined on the basis of earning capacity, not actual earnings (see Pezza v Pezza, 300 AD2d 555 [2002]; Borra v Borra, 218 AD2d 780 [1995]; Brodsky v Brodsky, 214 AD2d 599, 600 [1995]). Here, the report of the financial expert that the plaintiff could expect to earn such an annual income and the plaintiff’s part-time earnings commensurate with such full-time compensation support the Supreme Court’s determination (see Viscardi v Viscardi, 303 AD2d 401 [2003]; Cerabona v Cerabona, 302 AD2d 346, 347 [2003]; Walker v Walker, 289 AD2d 225, 226 [2001]; Brown v Brown, 239 AD2d 535 [1997]).
In denying the plaintiffs request for maintenance, however, the Supreme Court failed to remove from consideration that portion of the plaintiffs income stream that was distributed in equitable distribution, as it was required to do (see Grunfeld v Grunfeld, 94 NY2d 696, 704 [2000]; McSparron v McSparron, supra; Miklos v Miklos, supra at 398; Hlinka v Hlinka, 1 AD3d 561, 562 [2003]). Since we cannot on this record determine the appropriate method for separating that which was distributed from that which was not, we remit the matter to the Supreme Court, Suffolk County, for reconsideration of the plaintiff’s request for maintenance without consideration of the income stream derived from the enhanced earning capacity (see Miklos v Miklos, supra, 9 AD3d at 399). We note in doing so, however,
A party who has engaged in conduct resulting in unnecessary litigation may properly be denied an award of an attorney’s fee (see Gottlieb v Gottlieb, 297 AD2d 620 [2002]; Ravel v Ravel, 235 AD2d 410, 411 [1997]; Meyn v Meyn, 119 AD2d 645 [1986]), and a party who was thereby caused to incur legal fees that otherwise would have been unnecessary may recover such fees (see Clark v Clark, 17 AD3d 503 [2005]; McCully v McCully, 306 AD2d 329, 330 [2003]; Saslow v Saslow, 305 AD2d 487, 489 [2003]; Ferina v Ferina, 286 AD2d 472, 475 [2001]; Morrissey v Morrissey, 259 AD2d 472, 473 [1999]; Walker v Walker, 255 AD2d 375, 376 [1998]). The record supports the Supreme Court’s determination to deny the plaintiff’s request for an award of an attorney’s fee and grant the defendant’s request for an award of an attorney’s fee on this basis.
The plaintiff’s contention that the trial court erred in adjudicating her in contempt of the divorce judgment without first holding an evidentiary hearing is not academic. “ inasmuch as enduring consequences potentially flow from [the] order adjudicating [the contemnor] in civil contempt” (Matter of Hold v Hold, 8 AD3d 279 [2004], quoting Matter of Bickwid v Deutsch, 87 NY2d 862 [1995]), an appeal from a contempt adjudication is not rendered academic when the contempt is purged (see Matter of Zullo v Horn, 10 AD3d 614, 616 [2004]). Since the record with respect to the contempt motion raises an issué of fact as to whether the defendant had prior knowledge that the plaintiff had enrolled the parties’ son in parochial school, an evidentiary hearing was required (see People ex rel. Smulczeski v Smulczeski, 18 AD3d 785 [2005]; Matter of Janczuk v Janczuk, 305 AD2d 680, 681 [2003]; Lesesne v Lesesne, 292 AD2d 510 [2002]; Sidhu v Sidhu, 274 AD2d 465 [2000]; Mulder v Mulder, 191 AJ)2d 541 [1993]).
The plaintiff’s remaining contentions are without merit. Florio, J.E, Krausman, Luciano and Spolzino, JJ., concur.