| Ponzi v Ponzi |
| 2007 NY Slip Op 08546 [45 AD3d 1327] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Navino L. Ponzi, Respondent-Appellant, v Peggy B. Ponzi,Appellant-Respondent. |
—[*1] Barbara Ellen Handschu, Buffalo, for plaintiff-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Niagara County (Ralph A.Boniello, III, J.), entered July 31, 2006 in a divorce action. The judgment, among other things,distributed the marital property.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: In this divorce action, defendant appeals from a judgment and plaintiffcross-appeals from a previously entered "decision and order." The latter document did notactually order anything, however, despite Supreme Court's statement that it "shall constitute theOrder of the Court," and no appeal lies from a mere decision (see Pecora v Lawrence, 28 AD3d 1136, 1137 [2006]; Kuhn vKuhn, 129 AD2d 967 [1987]). We nevertheless exercise our discretion to treat the notice ofcross appeal as valid and deem the cross appeal as taken from the judgment (see CPLR5520 [c]; Kimmel v State of NewYork, 38 AD3d 1155 [2007]).
With respect to the appeal, we conclude that the court properly determined that the balanceof defendant's U.S. Government Thrift Savings Plan (Savings Plan), with the exception of theamount in the Savings Plan at the time of the marriage, was marital property subject to equitabledistribution. Here, the parties agreed that the amount in the Savings Plan at the time of themarriage was $9,156.87 and was defendant's separate property. Defendant failed, however, tooffer evidence that the appreciation in that separate property resulted solely from passive marketforces (see Roehmholdt v Russell, 272 AD2d 938, 939 [2000]). Thus, because theappreciation occurred during the marriage, it is presumptively marital property, and defendantfailed to overcome the presumption by establishing that the property is separate (see generallyPrice v Price, 69 NY2d 8, 17-18 [1986]; Parkinson v Parkinson, 295 AD2d 909[2002]).
Contrary to the contention of defendant, the record supports the court's distribution ofher pension. It was within the court's discretion to direct defendant to select a 50% survivorpay-out option for her pension and to direct that plaintiff's share of each periodic payment becalculated as though defendant has selected an option providing for the highest periodic paymentduring her lifetime so that plaintiff's share of that asset would not be impaired (see Ferriera vFerriera, 112 [*2]AD2d 22, 23 [1985]; see alsoMcDermott v McDermott, 119 AD2d 370, 376 [1986], appeal dismissed 69 NY2d1028 [1987]; Farsace v Farsace, 97 AD2d 951, 952 [1983]). The further contention ofdefendant that plaintiff's share of her pension should be reduced because she is a federalemployee and thus ineligible to receive Social Security benefits is not properly before us. Thatcontention is improperly raised for the first time in defendant's reply brief (see Turner v Canale, 15 AD3d 960[2005], lv denied 5 NY3d 702 [2005]). In any event, it is without merit because therecord contains evidence that defendant in fact contributes to and is eligible to receive SocialSecurity benefits.With respect to the cross appeal, we further conclude that the court's award ofmaintenance to plaintiff in the amount of $325 per week for a period of five years, which wasdetermined following a thorough analysis of the parties' finances, was not an abuse of discretion(see generally Anderson v Anderson, 286 AD2d 967, 969 [2001]). The record establishesthat defendant was the primary earner throughout the 10-year marriage, that plaintiff is presentlyunemployed and receiving a disability pension, that there is a large disparity in the parties'incomes, and that the total amount of plaintiff's pension income and the maintenance award ismore than adequate to meet the reasonable needs of plaintiff, in view of his predivorce standardof living (see Hartog v Hartog, 85 NY2d 36, 52 [1995]). Present—Scudder, P.J.,Gorski, Lunn, Peradotto and Green, JJ.