| Tietjen v Tietjen |
| 2008 NY Slip Op 01742 [48 AD3d 789] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Glenn Tietjen, Appellant-Respondent, v Doreen Tietjen,Respondent-Appellant. |
—[*1] Michael D. Solomon, Levittown, N.Y., for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by hisnotice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County(Pastoressa, J.), dated April 17, 2007, as granted the wife's motion, in effect, for summaryjudgment declaring that, pursuant to the terms of a certain prenuptial agreement dated February13, 1991, the appreciated value in her separate real property located in West Babylon and herpension rights with the New York State Retirement System are excluded from equitabledistribution, and denied that branch of his cross motion which was, in effect, for summaryjudgment declaring that increases in, appreciation in the value of, and enhancements or additionsto this separate property are marital property subject to equitable distribution, and the defendantwife cross-appeals, as limited by her brief, from so much of the same order as granted that branchof the husband's cross motion which was, in effect, for summary judgment declaring that he hasnot contractually waived his right to claim, as marital property, increases in, appreciation in thevalue of, and enhancements or additions to, funds on deposit in two savings accounts and in heraccount established pursuant to Internal Revenue Code (26 USC) § 403 (b).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe defendant's motion for summary judgment and substituting therefor a provision denying themotion, (2) by deleting the provision thereof denying that branch of the plaintiff's cross motionwhich was, in effect, for summary judgment declaring that increases in, appreciation in the valueof, and enhancements or additions to the wife's separate real property located in West Babylonand the wife's pension rights with the New York State Retirement System are marital propertysubject to equitable distribution, and substituting therefor a provision granting that branch of thecross motion, and (3), upon searching the record, adding thereto a provision awarding summaryjudgment to the [*2]plaintiff declaring that the nature andclassification of increases in, appreciation in the value of, and enhancements or additions to theseparate property, if any, and the income derived from the separate property, if any, must bedetermined in accordance with the provisions of Domestic Relations Law § 236 (B) (1) (d)(3); as so modified, the order is affirmed insofar as appealed and cross-appealed from, with onebill of costs payable to the plaintiff, and the matter is remitted to the Supreme Court, SuffolkCounty, to determine which portion of the increase in, appreciation of, and enhancements oradditions to the separate property, if any, and the income derived from that property, if any, areattributable to the plaintiff's contributions or efforts, and thereafter to calculate the value of theincreases in, appreciation of, and enhancements or additions to the separate property, if any, andthe income derived from that property, if any.
Under New York law, the appreciation of, or increase in the value of, separate property isconsidered separate property, "except to the extent that such appreciation is due in part to thecontributions or efforts of the other spouse" (Domestic Relations Law § 236 [B] [1] [d][3]; see Price v Price, 69 NY2d 8 [1986]).
Spouses are free to opt out of this general rule by mutual written agreement pursuant toDomestic Relations Law § 236 (B) (3). However, the intent to override the rules ofequitable distribution—whether by express waiver, or by specifically designating asseparate property assets that would otherwise be considered marital property under New Yorklaw—must be clearly evidenced by the writing (see Vendome v Vendome, 41AD3d 837 [2007]; Kalousdian v Kalousdian, 35 AD3d 669 [2006]; Spilman-Conklinv Conklin, 11 AD3d 798, 800-801 [2004]).
Here, contrary to the wife's contentions, the subject prenuptial agreement neither effects amutual waiver of the parties' equitable distribution rights generally (see Moldofsky vMoldofsky, 43 AD3d 1011, 1012 [2007]; Ventimiglia v Ventimiglia, 307 AD2d 993,994 [2003]), nor evinces a clear intent specifically to deviate from the provisions of DomesticRelations Law § 236 (B) (1) (d) (3) (see Siclari v Siclari, 291 AD2d 392 [2002]).Thus, the husband is not precluded from seeking equitable distribution of any increases in,appreciation in the value of, or enhancements or additions to, the wife's separate property, or ofany income derived from that property, to the extent such appreciation or income is attributableto his contributions or efforts (see Siclari v Siclari, 291 AD2d 392 [2002]). Skelos, J.P.,Fisher, Dillon and McCarthy, JJ., concur.