| Bonanno v Bonanno |
| 2008 NY Slip Op 10084 [57 AD3d 1260] |
| December 24, 2008 |
| Appellate Division, Third Department |
| Judy Bonanno, Respondent, v John Bonanno,Appellant. |
—[*1] Robert L. Adams, Albany, for respondent.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered June 20,2007 in Albany County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
Plaintiff and defendant were married in February 1998 and have three children. In September2005, plaintiff commenced this action for divorce. Upon withdrawal of defendant's answer andcounterclaims, Supreme Court entered a default judgment of divorce. The parties stipulated tonumerous matters and, following a nonjury trial on the remaining contested issues, Supreme Court,among other things, denied defendant any interest in the appreciation of plaintiff's separateproperty—a condominium—and determined that plaintiff was entitled to retroactive creditfor certain pension benefits.
With respect to the condominium, defendant contends that Supreme Court abused its discretion innot equitably distributing the appreciated value as marital property. We do not agree. Thecondominium, having been purchased by plaintiff prior to the marriage, was clearly separate property(see Domestic Relations Law § 236 [B] [1] [d] [1]) and, therefore, any increase in valueremains separate property "except to the extent that such appreciation is due in part to the contributionsor efforts of the other spouse" (Domestic Relations Law § 236 [B] [1] [d] [3]; see Hartog vHartog, 85 NY2d 36, 45-46 [1995]; Price v Price, 69 NY2d 8, 15 [1986]). [*2]Defendant, as the nontitled spouse claiming such interest, bore the burdenof establishing that the increased value was due in part to his efforts as opposed to market forces orother unrelated factors (see Golub vGanz, 22 AD3d 919, 922-923 [2005]; Lawson v Lawson, 288 AD2d 795, 796[2001]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
Turning to the proof, defendant testified regarding the general maintenance that the partiesperformed at the condominium, which included painting, caulking, arranging for carpet installation andreplacement of appliances, and also his dealings with the Boston Housing Authority in regard to tenantmatters. We have also considered that it is undisputed that no renovations or structural changes to thecondominium were made during the course of the marriage. Notably, plaintiff's testimony establishedthat property values have increased dramatically as a result of revitalization of the neighborhood due inlarge part to the recent construction of luxury condominiums across the street from the condominium.Under all the circumstances, we cannot say that Supreme Court abused its discretion in finding that theincrease in value resulted from market forces.
We do find merit, however, in defendant's contention that he is entitled to recoup his share of themarital funds expended in connection with the condominium. The parties agree that the rents from thecondominium were deposited into a joint account and reported on the parties' joint tax returns. Oncethe rents were commingled in the parties' joint account, that money presumptively became maritalproperty (see Carney v Carney, 202 AD2d 907, 908 [1994]). The issue herein is whether thatpresumption has been rebutted. The record establishes that $112,570 was expended during the courseof the marriage to pay the mortgage and other expenses associated with the condominium. The recordfurther establishes that rental income totaled $76,718, and all of this amount can undisputably be tracedto paying expenditures associated with the condominium. Therefore, to that extent, plaintiff overcamethe presumption that the rents, once deposited, became marital property (see Mink v Mink,163 AD2d 748, 749 [1990]; cf. Burtchaell vBurtchaell, 42 AD3d 783, 786 [2007]; Carney v Carney, 202 AD2d at 908;Lischynsky v Lischynsky, 120 AD2d 824, 826 [1986]). After the rents were applied to the$112,570 total costs, that left the amount of $35,852 in condominium expenses that were paid usingmarital funds. Accordingly, we find that defendant is entitled to recoup his equitable share of thatamount (see Micha v Micha, 213 AD2d 956, 957-958 [1995]; see also Lewis v Lewis, 6 AD3d 837,839 [2004]; Carr v Carr, 291 AD2d 672 [2002]), less any tax savings received as a resultduring the course of the marriage (see Domestic Relations Law § 236 [B] [5] [d] [13]).Because defendant testified that the tax rate changed from year to year during the course of themarriage, the matter must be remitted for a determination of the sum of the tax savings to be factoredinto the amount due defendant.
Finally, defendant contends that Supreme Court should not have awarded plaintiff retroactive creditfor pension payments that he received while living in the marital home because during that time hecontinued to pay various household expenses, resulting in a double recovery for plaintiff. However, onthe proof presented, we find no basis to disturb Supreme Court's award.
Mercure, Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the judgment is modified, onthe law and the facts, without costs, by reversing so much thereof as denied defendant equitabledistribution in relation to marital funds expended in connection with plaintiff's separate property; matterremitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and,as so modified, affirmed.