
    In the Matter of the Arbitration between Adele Epstein, Petitioner, and Leonard Epstein, Respondent.
    Supreme Court, Special Term, Nassau County,
    April 21, 1960.
    
      
      Joshua J. Easaw for petitioner. Joseph F. Finkelstein for respondent.
   Frank A. Gulotta, J.

This is a motion for an order directing that certain controversies which have arisen between the parties with relation to a separation agreement proceed to arbitration in accordance with the terms thereof.

After providing for the amounts of money to be paid by the husband the agreement provides “ that said amount shall be subject to adjustment in the event of a change in the financial circumstances of the husband, particularly with respect to his income or other resources available for such payments”. It further provides that when his income shall exceed the sum of $17,000, after payment of income taxes, the payments to his wife and children shall be increased proportionately.

The petitioner has set forth facts and figures which, if established would bring the respondent’s income well over the $17,000 figure.

On the other hand, respondent disputes these items and has annexed a copy of his 1959 Federal income tax report showing a gross business income of $44,868.05 and a net income of $13,803.46. While the deductible items listed by the respondent in his tax return may be proper for tax purposes some of them might nevertheless constitute income insofar as the agreement is concerned.

The respondent argues that the income tax report is conclusive on the parties since the agreement provides it shall be deemed a compliance with the disclosure provision, for defendant to furnish a copy of his Federal tax return. However, what his Federal return shows and what his true income is are not necessarily the same thing, and his true income is the issue here.

It is apparent from a reading of this agreement that it was intended that the submission of a copy of the tax return constitute a compliance only with the provision requiring him to submit to petitioner a financial statement. Nothing in the agreement says or indicates any intention that petitioner was to be bound by those figures.

The facts warrant, within the intendment of the agreement the appointment of an arbitrator to determine:

1. The annual income of respondent.

2. What if any adjustment in payments shall be made in accordance with the agreement.  