| Robinson v Robinson |
| 2015 NY Slip Op 08694 [133 AD3d 1185] |
| November 25, 2015 |
| Appellate Division, Third Department |
[*1]
| Gregg R. Robinson, Appellant-Respondent, v CarolynErff Robinson, Respondent-Appellant. |
Orseck Law Offices, PLLC, Liberty (Gerald Orseck of counsel), forappellant-respondent.
Harlem & Jervis, Oneonta (Richard A. Harlem of counsel), forrespondent-appellant.
Peters, P.J. Cross appeal from a judgment of the Supreme Court (Lambert, J.),entered September 4, 2014 in Delaware County, ordering, among other things, equitabledistribution of the parties' marital property, upon decisions of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were marriedin 2002. The husband commenced this action in 2010 and, after the parties stipulated tothe grounds for divorce, a nonjury trial was conducted on the issues of equitabledistribution and maintenance. Supreme Court granted the divorce, distributed the maritalproperty and directed the husband to pay the wife $500 a month in spousal maintenancefor 26 months and $5,000 in counsel fees. This cross appeal ensued.
Both parties challenge the award of maintenance; the wife argues that the amountand/or duration of the award is insufficient, while the husband contends that any awardof maintenance was error. "The amount and duration of a maintenance award areaddressed to the sound discretion of the trial court, and will not be disturbed providedthat the statutory factors and the parties' predivorce standard of living are considered" (Cornish v Eraca-Cornish, 107AD3d 1322, 1324 [2013] [internal quotation marks, brackets and citations omitted];see Domestic Relations Law § 236 [B] [6]; Orioli v Orioli, 129 AD3d1154, 1155 [2015]). The court need not analyze and apply each and every factor setforth in the statute, but "must provide a reasoned analysis of the factors it ultimatelyrelies upon in awarding maintenance" (Curley v Curley, 125 AD3d 1227, [*2]1228 [2015]; see Vantine v Vantine, 125 AD3d 1259, 1261 [2015];McAteer v McAteer, 294 AD2d 783, 784 [2002]).
In fashioning its maintenance award, Supreme Court noted the length of themarriage, that the parties have no children in common and were both in relatively goodhealth. The wife has a Bachelor's degree, has held various clerical and administrativejobs during the marriage and was earning roughly $30,000 at the time of the trial. Thehusband possesses a high school education and has worked as a self-employed contractorsince 1994. Although the husband claimed an annual adjusted gross income of $20,399for the preceding tax year, Supreme Court found him incredible in the reporting of hisincome and assets, noting that he had actively concealed financial information and assetsand claimed expenses that exceeded his purported income. Deferring to the court'sevaluation of the husband's credibility on the issue of his income and assets (see Johnson v Chapin, 49AD3d 348, 360-361 [2008], mod 12 NY3d 461 [2009]), and considering thepredivorce standard of living and the relatively short-term nature of the award, we cannotconclude that the award of maintenance was an abuse of discretion (see Quarty v Quarty, 96 AD3d1274, 1277 [2012]; Burtchaell v Burtchaell, 42 AD3d 783, 784-785 [2007];Walters v Walters, 252 AD2d 775, 775 [1998]).
The parties also dispute several aspects of Supreme Court's equitable distributionaward, which "will not be disturbed absent an abuse of discretion or failure to considerthe requisite statutory factors" (Vertucci v Vertucci, 103 AD3d 999, 1001 [2013] [internalquotation marks and citations omitted]; see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420[2009]; Mula v Mula, 131AD3d 1296, 1298 [2015]). We first address the marital residence which, havingbeen purchased by the husband prior to the marriage, was the husband's separate property(see Domestic Relations Law § 236 [B] [1] [d] [1]; Ceravolo v DeSantis, 125AD3d 113, 115-116 [2015]). However, "any appreciation in the value of separateproperty due to the contributions or efforts of the nontitled spouse will be consideredmarital property" (Johnson vChapin, 12 NY3d 461, 466 [2009]; see Domestic Relations Law§ 236 [B] [1] [d] [3]; Macaluso v Macaluso, 124 AD3d 959, 960 [2015]; Biagiotti v Biagiotti, 97 AD3d941, 943 [2012]). The wife, as the nontitled spouse, bore the burden of establishingthat any increase in the value of the separate property was due at least in part to hercontributions or efforts (see Macaluso v Macaluso, 124 AD3d at 962; Albanese v Albanese, 69 AD3d1005, 1006 [2010]; Bonanno v Bonanno, 57 AD3d 1260, 1261 [2008]).
While there is no dispute that substantial improvements had been made to the maritalhome, the parties presented sharply conflicting testimony as to both when thoseimprovements were made and the wife's overall contributions to the home and themarriage. The husband testified that, after he acquired his former spouse's interest in theproperty in 1999, he spent considerable time and effort renovating the marital residenceby, among other things, constructing an addition on the house, building a garage,landscaping and installing a new roof, siding, windows, a heating system and a deck.According to the husband, the improvements to the marital home were "pretty muchfinished" at the time he and the wife married in August 2002. He noted that someadditional work was performed after the wife moved into the marital residence, butclaimed that the wife did not assist in making any of the improvements and that he paidfor them with profits earned through his construction business and other personalendeavors. The wife, on the other hand, claimed that the vast majority of theimprovements testified to by the husband were made by the parties during the marriage.She explained that she and the husband spent numerous weekends renovating the maritalresidence and, while acknowledging that she did not have the skills to complete most ofthe construction work done to the home, testified that she would help purchase andobtain the required materials, request estimates, compare prices of materials andotherwise assist the husband with whatever he needed. The wife [*3]testified further that, in addition to working full time, shewas the primary caretaker of the marital residence and contributed to the household bydoing all of the cooking, cleaning and laundering. According appropriate deference toSupreme Court's credibility assessments and its substantial discretion in fashioning anaward (see Vantine v Vantine, 125 AD3d at 1261; Lurie v Lurie, 94 AD3d1376, 1378 [2012]), we find no basis upon which to disturb its determination thatthe appreciation in the value of the marital residence was attributable to the joint effortsof the parties and that the wife was entitled to 50% of that increase in value (see Lowe v Lowe, 123 AD3d1207, 1209 [2014]; Scher vScher, 91 AD3d 842, 845 [2012]; Miller v Miller, 4 AD3d 718, 719 [2004]).
We do find merit, however, in the wife's contention that Supreme Court erred indetermining the amount of the marital home's appreciation. The parties submittedcompeting appraisals valuing the property both on the date of the marriage and the dateof commencement of this action. In determining the appreciation, Supreme Courtaveraged the values set forth in the parties' respective date of marriage appraisals,averaged the values set forth in their date of commencement appraisals, and thensubtracted the former figure from the latter. While this Court has declined to impose anabsolute proscription against the procedure of averaging competing appraisals in valuinga marital asset (see Hoyt v Hoyt, 166 AD2d 800, 802 [1990]), blindly employingsuch a technique without articulating a reason for doing so cannot be condoned(see Domestic Relations Law § 236 [B] [5] [g]; Antinora v Antinora, 125AD3d 1336, 1339 [2015]; Gainer v Gainer, 111 AD2d 308, 309 [1985];cf. Latham Holding Co. v State of New York, 16 NY2d 41 [1965]). Mechanicallyaveraging values set forth in competing appraisals may well result in a speculativevaluation that is not founded in economic reality (see Morales v Morales, 230AD2d 895, 896 [1996], lv denied 90 NY2d 804 [1997]; Iwahara vIwahara, 226 AD2d 346, 348 [1996]; Martin v Martin, 200 AD2d 304, 308[1994]; Gainer v Gainer, 111 AD2d at 309).
Here, Supreme Court failed to set forth any reason for rejecting the valuationsadvanced by the parties' appraisers. Indeed, the court's decision to average the appraisalswas particularly problematic given the circumstances present here. The wife's date ofmarriage appraisal valued the marital home at $36,000 based on her representations thatthe substantial improvements at issue were performed during the marriage, while thehusband's appraisal valued it at $140,000 based upon his representations that suchimprovements were performed prior to the marriage.[FN*] Thus, the determination as to the valueof the marital home on the date of the marriage necessarily hinged upon the resolution offactual disputes and issues of credibility, which could not be accomplished by simplyaveraging the parties' wildly divergent appraisals. In its decision, Supreme Court foundthat "significant improvements" were made to the marital residence during the marriage,but it is not clear to what extent the court accepted the wife's testimony concerning theimprovements that were allegedly made during that period. While our authority inmatters such as this are as broad as that of Supreme Court (see Quarty v Quarty, 74 AD3d1516, 1517 [2010]; Dewittv Sheiness, 42 AD3d 776, 777 [2007]), we deem it appropriate to vacate thedistributive award concerning the appreciation of the marital residence and remit thematter to Supreme Court for appropriate findings of fact and conclusions of law on thatissue (see Domestic Relations Law § 236 [B] [5] [g]; Antinora vAntinora, 125 AD3d at 1339). Inasmuch as Supreme Court's erroneous valuation ofthe appreciation of that asset, as well as its improper valuation of an additional parcel ofreal property owned by the parties (see infra), may have [*4]affected its overall scheme of distribution as well as itscalculation of maintenance, the court should also reconsider these interdependent issuesupon remittal (see Macaluso v Macaluso, 124 AD3d at 962; McAteer vMcAteer, 294 AD2d at 785).
Supreme Court's valuation of real property purchased by the parties during themarriage (hereinafter the Cooks Falls Road property) suffered from the same infirmity.Thus, this portion of the award must likewise be vacated and appropriate findings andconclusions as to the value of the Cooks Falls Road property shall be made by SupremeCourt upon remittal (see Domestic Relations Law § 236 [B] [5] [g]).With regard to this property, the husband agues that he is entitled to a separate propertycredit in the amount of $6,800 used as part of the down payment, claiming that suchfunds were a gift to him from his mother. Although a party is generally entitled to a creditfor any contribution of separate property toward the purchase of a marital asset (see Fields v Fields, 15 NY3d158, 167 [2010]; Beardsleev Beardslee, 124 AD3d 969, 969 [2015]; Murray v Murray, 101 AD3d 1320, 1321 [2012], lvdismissed 20 NY3d 1085 [2013]), the husband failed to present any evidenceestablishing that his mother's down payment contribution was a gift and, even if it was,that such funds were a gift to him alone (see Patete v Rodriguez, 109 AD3d 595, 598 [2013]; Sieger v Sieger, 37 AD3d585, 587 [2007]; Haynes v Toma, 300 AD2d 357, 357 [2002]).
The husband also contends that Supreme Court improperly awarded the wife half ofthe value of certain of his business assets. As the husband represented to the court in hisstatement of proposed disposition that two Ford vehicles and a backhoe were maritalproperty subject to equitable distribution, he cannot now be heard to complain that thecourt erred in not classifying those assets as separate property (see Sawyer vSawyer, 268 AD2d 929, 929 [2000]; Holcomb v Holcomb, 148 AD2d 915,916 [1989]). As for a compressor, a Miter saw, a pressure washer, a generator and certaintools contained in a cargo van—all of which were acquired during themarriage—no evidence was presented that these items were acquired bydefendant's business with separate property. Thus, the husband failed to rebut thepresumption that such assets constitute marital property (see Domestic RelationsLaw § 236 [B] [1] [c]; Fields v Fields, 15 NY3d at 162; Price vPrice, 69 NY2d 8, 15 [1986]; see also Zufall v Zufall, 109 AD3d 1135, 1137-1138[2013], lv denied 22 NY3d 859 [2014]).
We reach a different conclusion as to the husband's Chase Bank checking account.Such business account, which was held by "Gregg R. Robinson d/b/a RobinsonConstruction" and established prior to the marriage, was the husband's separate property(see Domestic Relations Law § 236 [B] [1] [d] [1]). The husbandtestified, without contradiction, that the wife did not make any deposits into the businessaccount and there was no evidence establishing that the husband's business funds wereotherwise commingled with marital property. The fact that the husband may have madewithdrawals from the business account to pay marital expenses did not change thecharacter of the account (seeChernoff v Chernoff, 31 AD3d 900, 903 [2006]; Spencer v Spencer, 230AD2d 645, 647 [1996]; Feldman v Feldman, 194 AD2d 207, 216 [1993]).Accordingly, the husband's Chase business checking account was not marital propertysubject to equitable distribution, and Supreme Court erred in awarding the wife 50% ofthe balance of such account.
Supreme Court did not abuse its discretion in refusing to allocate between the partiescertain debts and finance charges incurred on credit cards held in the wife's name, as thewife failed to present sufficient evidence that such debts were used for marital expenses(see Guy v Guy, 118 AD3d1352, 1353 [2014]; Wexlerv Wexler, 34 AD3d 458, 460 [2006], lv dismissed and denied 8 NY3d1007 [2007]; Cabeche vCabeche, 10 AD3d 441, 441 [2004]). Nor did Supreme Court err [*5]in failing to enforce a stipulation entered into by the partiesduring the course of a separate Family Court proceeding whereby the husband agreed topay the wife $500 a month during the pendency of this action. "[W]ithout proof in therecord of a valid opt-out agreement [as required by Domestic Relations Law§ 236 (B) (3)], the oral stipulation is unenforceable" in the context of thismatrimonial action (Birr vBirr, 70 AD3d 1221, 1223 [2010]; see Harbour v Harbour, 243 AD2d947, 949 [1997], lv dismissed 92 NY2d 845 [1998]; Timperio vTimperio, 232 AD2d 857, 859 [1996]). Finally, considering "the financialcircumstances of both parties together with all the other circumstances of the case"(Johnson v Chapin, 12 NY3d at 467 [internal quotation marks and citationsomitted]; see Domestic Relations Law § 237 [a]), we find thatSupreme Court providently exercised its discretion in directing the husband to contribute$5,000 towards the wife's counsel fees (see Roberto v Roberto, 90 AD3d 1373, 1376-1377 [2011];Johnson v Chapin, 49 AD3d at 361-362).
The parties' remaining contentions, to the extent that they are properly before us, areeither lacking in merit or do not warrant a further modification or reversal of thejudgment.
Lahtinen, Garry and Clark, JJ., concur. Ordered that the judgment is modified, on thelaw, without costs, by reversing so much thereof as awarded defendant (1) $42,250 and$32,000 representing the appreciation of the marital residence and the value of the CooksFalls Road property, respectively, and (2) one half of the balance of plaintiff's ChaseBank business checking account; matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:By averaging theappraisals, Supreme Court determined the value of the marital residence on the date ofmarriage to be $88,000.