| Michaelessi v Michaelessi |
| 2009 NY Slip Op 01452 [59 AD3d 688] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Adaymee Michaelessi, Appellant, v Charles Michaelessi,Respondent. |
—[*1] Robert Schnapp, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her notice ofappeal and brief, from so much of a judgment of the Supreme Court, Queens County (Geller,Special Referee), entered June 20, 2007, as, upon a decision of the same court dated January 23,2007, made after a nonjury trial, awarded her only 25% of the value of the defendant's pensionand failed to award her any portion of a joint bank account and an individual retirement accountheld in the defendant's name.
Ordered that the judgment is modified, on the law, by adding thereto provisions (1) awardingthe plaintiff the sum of $5,165.50, representing 50% of the value of the joint bank account, asvalued at the date of commencement of the action, and (2) awarding the plaintiff 50% of thevalue of the individual retirement account, valued as of the date the equitable distribution issueswere tried; as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Queens County, for adetermination of the value of the Individual Retirement account as of January 31, 2006, and theentry thereafter of an appropriate amended judgment.
"The trial court 'is vested with broad discretion in making an equitable distribution of maritalproperty' . . . and unless it can be shown that the court improvidently exercised thatdiscretion, its determination should not be disturbed" (Saleh v Saleh, 40 AD3d 617, 617-618 [2007], quoting Bossardv Bossard, 199 AD2d 971, 971 [1993]). Equitable distribution does not necessarily meanequal distribution (see Evans v Evans,57 AD3d 718 [2008]; Greene v Greene, 250 AD2d 572 [1998]).
The Supreme Court providently exercised its discretion in awarding the plaintiff 25% of thevalue of the defendant's pension. The plaintiff admitted that she did not truthfully fill out her networth statement, and failed to provide an adequate explanation as to how she was able to affordto pay for a significant elective-surgical procedure with her claimed level of assets. "Secretingassets in order to prevent the trial court from making an equitable distribution of propertysupports a finding of economic fault. Once such a finding is made, the trial court must considerthe missing assets in making it distributive award" (Contino v Contino, 140 AD2d 662,662-663 [1988] [citations omitted]). The Supreme Court providently exercised its discretion intaking the missing assets into account and limiting the plaintiff's share of the value of thedefendant's pension to 25%.
The remainder of the marital property distributed was distributed on a 50/50 basis. However,the Supreme Court erred in concluding that a bank account at the North Fork Bank, which thedefendant acknowledged was a joint account, was separate property (see Palumbo v Palumbo, 10 AD3d680, 681 [2004]). Contrary to the court's determination, there was evidence that the bankaccount was a joint account and had a value, at the time of commencement of the action, of$10,313 (see Ruane v Ruane, 55AD3d 586, 588 [2008]; Iwanow vIwanow, 39 AD3d 471, 473 [2007]; D'Angelo v D'Angelo, 14 AD3d 476 [2005]). Accordingly, theplaintiff was entitled to, and should have been awarded, a 50% share, in the sum of $5,156.50.
The Supreme Court also erred in failing to award the plaintiff any portion of an individualretirement account (hereinafter IRA) held in the defendant's name with Brown Co., which wasunquestionably marital property. The plaintiff is entitled to, and should have been awarded, a50% share of the value of that account. The only proof of the value of that asset is its valuearound the time of the commencement of the action. However, that passive investment account ismore appropriately valued as of the date of the equitable distribution trial, January 31, 2006.Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination ofthe value of the IRA on January 31, 2006 (see Donovan v Szlepcsik, 52 AD3d 563, 563-564 [2008]; Daniel v Friedman, 22 AD3d 707,708 [2005]), and the entry thereafter of an appropriate amended judgment. Rivera, J.P., Dillon,Covello and Angiolillo, JJ., concur.