| Macaluso v Macaluso |
| 2015 NY Slip Op 00265 [124 AD3d 959] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| Claudia Macaluso, Respondent, v Anthony Macaluso,Appellant. |
Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for appellant.
Catherine E. Stuckart, Binghamton, for respondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lambert, J.), enteredSeptember 11, 2013 in Delaware County, ordering, among other things, equitabledistribution of the parties' marital property, upon a decision of the court.
The parties were married in 1991. Plaintiff (hereinafter the wife) commenced thisdivorce action in 2011 and, after the parties stipulated to dissolving the marriage underDomestic Relations Law § 170 (7), a four-day, nonjury trial was conductedon equitable distribution and spousal maintenance, among other things. Supreme Courtissued an order awarding the wife maintenance and dividing the marital property and,thereafter, the court rendered a judgment of divorce that incorporated its prior order.Defendant (hereinafter the husband) appeals.[FN*]
Supreme Court did not err in ordering the equal distribution of two joint bankaccounts and a stock portfolio, after finding that they were marital property. The act oftransferring separate property into an account held by both spouses " 'raises apresumption that the funds are [*2]marital property to bedisbursed among the parties according to the principles of equitabledistribution' " (Fehring v Fehring, 58 AD3d 1061, 1062 [2009], quotingRosenkranse v Rosenkranse, 290 AD2d 685, 686 [2002]). As to the stockportfolio that the husband claimed to have opened in order to deposit his separateproperty, the husband's trial testimony revealed that he added the wife to the account sothat she could make stock purchases, and she remained on the account and exercisedsome control over it for roughly half of the marriage. With regard to the joint bankaccounts, the husband provided no evidence to rebut the presumption that the accountswere marital and that they were established only as a matter of convenience (see Burnett v Burnett, 101AD3d 1417, 1419 [2012]; Murray v Murray, 101 AD3d 1320, 1321-1322 [2012],lv dismissed 20 NY3d 1085 [2013]).
We next turn to the husband's Thrift Savings Plan, which was established prior to themarriage and remains in the husband's name. The uncontroverted proof demonstratedthat contributions were also made to the plan during the marriage, so at least a portion ofthe plan constituted marital property. The husband did not offer any proof at trialregarding the value of the separate portion of the plan but, rather, merely indicated thatthe wife was ineligible to receive any portion of the plan because she had allegedlyabandoned him. Inasmuch as the proof was insufficient to enable Supreme Court todetermine which portion of the plan was separate and which was marital, the court wasentitled to equitably distribute the entirety of the plan (see Zufall v Zufall, 109 AD3d1135, 1138 [2013], lv denied 22 NY3d 859 [2014]; Ponzi v Ponzi, 45 AD3d1327, 1327-1328 [2007]).
We agree, however, with the husband's argument that Supreme Court failed toproperly consider what part, if any, of his pension was separate property. The recordestablishes the husband's starting and ending dates of employment with the United StatesPostal Service and the date of the parties' marriage, thereby allowing the court todetermine which portion of the pension—a defined benefit plan—wasearned prior to the marriage and is, therefore, the husband's separate property (seeMajauskas v Majauskas, 61 NY2d 481, 494 [1984]). Accordingly, we remit thematter to Supreme Court for a determination of the percentage of the pension that ismarital property and, thus, may be equitably distributed (see Cameron v Cameron, 22AD3d 911, 912-913 [2005]).
Supreme Court erred in finding that the marital residence was marital property andawarding the wife 50% of the home's appraised value minus a $10,000 separate propertycredit to the husband for the purchase price of the land. Supreme Court credited thewife's testimony that, although the husband purchased the land and constructed a "shell"of a house prior to the marriage, the construction of the residence was not complete untilapproximately four years after the marriage. The record demonstrates that the vastmajority of the improvements occurred during the marriage due, in part, to the wife'scontributions of money, time and labor. Nevertheless, for the reasons set forth inCeravolo v DeSantis (125 AD3d 113 [2015] [decided herewith]), a parcel of real property that is separate propertycannot be transformed or transmuted into marital property by the efforts andcontributions of the nontitled spouse. Accordingly, the parcel was separate property(see Domestic Relations Law § 236 [B] [1] [d] [1]), which is notsubject to equitable distribution (see Domestic Relations Law § 236[B] [5] [b]; compare Domestic Relations Law § 236 [B] [5][c]).
Appreciation in value of separate property, from the date of the marriage to the dateof commencement of the divorce action, can be considered a marital asset subject toequitable distribution "if the appreciation is due to the contributions or efforts of thenontitled spouse" (Biagiotti vBiagiotti, 97 AD3d 941, 943 [2012]; see Johnson v Chapin, 12 NY3d 461, 466 [2009]; seealso Domestic Relations Law § 236 [B] [1] [d] [3]). The wife, as thenontitled [*3]spouse here, bore the burden of proving thatany increase in value of the husband's separate property was at least partially due to herefforts (see Sadaghiani vGhayoori, 83 AD3d 1309, 1311 [2011]). The value of the parcel when thehusband purchased it is irrelevant, considering that the parcel was vacant at that time buthad the outer structure of a house before the marriage. Additionally, the property's valuecould have increased due to market forces between the dates of purchase and marriage.Simply crediting the husband for the purchase price and dividing the remainder of theproperty's value between the parties would improperly give the wife half of the value ofthe appreciation between the dates of purchase and marriage, despite that portion of theappreciation being separate property (see Domestic Relations Law§ 236 [B] [1] [d] [3]). Although the wife could have been entitled toequitable distribution of a portion of the residence's appreciation in value for hercontributions of time, money and labor toward improving the property, she did not meether burden by proving the real property's increase in value, as she did not submit proof ofthe property's value on the date of the marriage to compare it to the value at the time ofcommencement of this action (see Ceravolo v DeSantis, 125 AD3d at117-118; Burgio v Burgio, 278 AD2d 767, 769 [2000]; see e.g. Albanese v Albanese,69 AD3d 1005, 1006 [2010]; compare Biagiotti v Biagiotti, 97 AD3d at943). Inasmuch as the wife was not entitled to any portion of the value of the residence,and Supreme Court's distribution of that asset and the husband's pension may haveaffected its overall scheme of distribution as well as its calculation of maintenance, weremit for Supreme Court to reconsider equitable distribution of the parties' marital assetsand the appropriate maintenance award (see Cameron v Cameron, 22 AD3d at913).
Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as found thatdefendant's pension and the marital residence were entirely marital property; matterremitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote *:After the husbandappealed from Supreme Court's order, the wife moved to dismiss the appeal and thehusband cross-moved to amend the notice of appeal. This Court denied the wife's motionand granted the cross motion, holding that the husband is deemed to have appealed fromthe final judgment.