| Juhasz v Juhasz |
| 2009 NY Slip Op 00883 [59 AD3d 1023] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Dana Juhasz, Respondent-Appellant, v Stephen Juhasz,Appellant-Respondent. |
—[*1] Harris Beach PLLC, Buffalo (Richard T. Sullivan of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an amended judgment of the Supreme Court, Erie County(John F. O'Donnell, J.), entered April 11, 2007 in a divorce action. The amended judgment,among other things, ordered defendant to pay maintenance and child support to plaintiff.
It is hereby ordered that the amended judgment so appealed from is unanimously modifiedon the law by providing that, upon the sale of the marital residence, defendant shall receive acredit of $216,000 and by vacating the amount awarded for child support and the directive thatplaintiff designate defendant as beneficiary of life insurance for the benefit of the parties'children and as modified the amended judgment is affirmed without costs, and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: Defendant appeals and plaintiff cross-appeals from an amendedjudgment of divorce that, inter alia, directed defendant to pay maintenance and child support, aswell as distributed marital property. The parties were married in 1990 and have three minorchildren. Supreme Court properly determined that a brokerage account with Julius Baer (JBaccount) was defendant's separate property inasmuch as it was funded entirely from defendant'spremarital sale of stock in a family business (see Domestic Relations Law § 236[B] [1] [d] [1]). The court erred, however, in failing to credit defendant for his contribution ofseparate property toward the purchase of the marital residence. It is well settled that a spouse isentitled to a credit for his or her contribution of separate property toward the purchase of themarital residence (see Milnarik vMilnarik, 23 AD3d 960, 962-963 [2005]; Gonzalez v Gonzalez, 291 AD2d 373,374 [2002]; Moses v Moses, 231 AD2d 850 [1996]), including any contributions that aredirectly traceable to separate property (see Spilman-Conklin v Conklin, 11 AD3d 798, 800 [2004];Myers v Myers, 255 AD2d 711, 716 [1998]).
Before the marriage, defendant purchased a home for $240,000 with funds that he derivedfrom his sale of the stock. During the marriage, defendant contributed $200,000 from the JBaccount to purchase a vacation home for approximately $450,000, and he secured a mortgage forthe balance. That mortgage was also paid with funds from the JB account. The partiessubsequently sold both homes and purchased the marital residence for $216,000. We concludethat defendant is entitled to a [*2]credit of $216,000 for hiscontribution of separate property to purchase the marital residence, and we therefore modify theamended judgment accordingly. "While [defendant] did not provide a paper trail documentingthe source of the money used to purchase the marital residence, nothing in either party'stestimony suggests that any other possible source for the money exists" (Zanger v Zanger, 1 AD3d 865,867 [2003]). In view of our determination concerning defendant's entitlement to a credit forseparate property with respect to the marital residence, we reject the contention of plaintiff onher cross appeal that she should have been awarded title to the marital residence as a matter ofequity (see generally Domestic Relations Law § 236 [B] [5] [d]).
We also reject the contention of defendant that he was entitled to a credit for separateproperty that he contributed for renovations to the marital residence. Although the maritalresidence was appraised for $420,000 four months prior to the trial, defendant failed to establishthat the separate property funds spent on renovations added value to the residence apart from theappreciation in value resulting from market forces over the period of ownership and, if so, theamount by which the value of the property was increased (see generally Parkinson vParkinson, 295 AD2d 909 [2002]).
Contrary to defendant's further contention, the court properly imputed income to defendantof $180,000 per year. Courts have "considerable discretion to attribute or [to] impute an annualincome to a parent" (Blaise v Blaise, 241 AD2d 680, 682 [1997]; see DomesticRelations Law § 240 [1-b] [b] [5] [iv]; Winnert-Marzinek v Winnert, 291 AD2d921 [2002]; see also Kay v Kay, 37 NY2d 632, 637 [1975]), and the record establishesthat defendant derived substantial income from his investments. We conclude, however, that theamount awarded for child support must be vacated because the court failed to articulate any basisfor that portion of the award based on the parental income exceeding $80,000 (see Matter ofCassano v Cassano, 85 NY2d 649, 653-655 [1995]; Matter of Miller v Miller, 55 AD3d 1267, 1268-1269 [2008];Irene v Irene [appeal No. 2], 41 AD3d 1179, 1181 [2007]). We therefore further modifythe amended judgment by vacating that amount, and we remit the matter to Supreme Court todetermine defendant's child support obligation in compliance with the Child Support StandardsAct (see e.g. Irene, 41 AD3d at 1181). Contrary to the contention of defendant, weconclude that the court properly ordered him to continue to pay for the private school educationof the children (see Domestic Relations Law § 240 [1-b] [c] [7]; Fruchter vFruchter, 288 AD2d 942, 943 [2001]).
We reject the further contention of plaintiff on her cross appeal that the court violatedDomestic Relations Law § 248 by ordering that maintenance would terminate in the eventthat she resided with an unrelated adult male for more than 30 days. That section, entitled"Modification of judgment or order in action for divorce or annulment," provides in relevant partthat a husband may apply for modification of a judgment of divorce if the wife remarriesor if she is "habitually living with another man and holding herself out as his wife, although notmarried to such man." Here, however, we are concerned with an initial award of maintenanceand not an application to modify an existing judgment or order. Inasmuch as courts have thediscretionary power to "fashion a fair and equitable maintenance award" (Hartog vHartog, 85 NY2d 36, 52 [1995]), we conclude under the circumstances of this case that thecondition imposed by the court is not improper (cf. Florio v Florio, 25 AD3d 947, 950 [2006]).
The further contention of plaintiff that she is entitled to arrears for maintenance and childsupport is not properly before us. In the amended judgment, the court specifically noted thatthese issues were unresolved and were still pending before the court. Thus, any ruling on thoseissues by this Court would be premature (see generally CPLR 5701 [a] [2]; Cobb vKittinger, 168 AD2d 923 [1990]).
As plaintiff contends and defendant correctly concedes, the court erred in directing plaintiffto "designate defendant as beneficiary [of life insurance] for the benefit of the children." Wetherefore [*3]further modify the amended judgment by vacatingthat directive. Present—Hurlbutt, J.P., Martoche, Smith and Pine, JJ.