| Zaretsky v Zaretsky |
| 2009 NY Slip Op 07626 [66 AD3d 885] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Harold Zaretsky, Appellant, v Feige Zaretsky,Respondent. |
—[*1] Feige Zaretsky, Brooklyn, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of an amended judgment of the Supreme Court, Nassau County (Sher, J.),entered June 23, 2008, which, upon a decision of the same court dated December 6, 2007, madeafter a nonjury trial, and an order of the same court dated April 2, 2008, inter alia, awarded thedefendant 100% of the equity in and sole title to the marital residence, the sum of $258,527 aspart of the equitable distribution of marital assets, nontaxable maintenance in the sum of $10,000per month for a period of seven years, and child support in the sum of $733 per week.
Ordered that the amended judgment is modified, on the law and the facts, (1) by deleting theprovision thereof awarding the defendant sole title to the marital residence, (2) by deleting theprovision thereof awarding the defendant the sum of $258,527 as part of the equitabledistribution of marital assets, and (3) by deleting the provision thereof awarding the defendantchild support in the sum of $733 per week, and substituting therefor a provision awarding thedefendant child support in the sum of $677 per week; as so modified, the amended judgment isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Nassau County, for further proceedings consistent herewith, and for theentry of an appropriate second amended judgment thereafter.
The plaintiff former husband and the defendant former wife were married on May 29, 1994and have three unemancipated children. Both parents were born deaf. For most of the marriage,the defendant was a stay-at-home mother. Throughout the marriage, the plaintiff worked forMaxi-Aids, Inc. (hereinafter Maxi-Aids), a company established by his father, to which theplaintiff was gifted a one-third interest prior to his marriage. In 2004 and 2005 the plaintiff'sgross income exceeded $500,000, and he received substantial additional funds from both parents.Also, since 1994, the plaintiff has held a one-half interest in M & H Realty, Inc., which owns thebuilding from which Maxi-Aids operates (hereinafter the M & H property).
Following the trial, the court awarded the defendant 100% of the equity in the maritalresidence, as well as sole title to the marital residence and a cash award in the sum of $258,527.The plaintiff contends that this distribution was improper.[*2]
Initially, the plaintiff contends that he was entitled to a$400,000 separate property credit for the marital residence, which was purchased in 2000. Thatfigure represents a $150,000 down payment provided by the plaintiff's father, as well as$250,000 in renovation expenses purportedly paid by the father. While a separate property creditmay be warranted when a marital asset is purchased with property that was gifted to only onespouse (see e.g. Vogel v Vogel, 156 AD2d 671, 673 [1989]), in this instance, the recordreflects that any moneys associated with the home purchase and renovations were gifts to bothparties. Accordingly, the plaintiff is not entitled to a separate property credit (see McSparronv McSparron, 87 NY2d 275, 282 n [1995]; Fiedler v Fiedler, 230 AD2d 822, 823[1996]; cf. Damato v Damato, 215 AD2d 348, 349 [1995]).
We agree, however, with the plaintiff's contention that the court's award to the defendant of100% of the equity in the marital residence was improper under the circumstances. While manyof the comments made by the plaintiff during the trial regarding his financial obligations to thedefendant were troubling, "we do not find sufficient basis in the record to justify a forfeiture ofhis equitable interest in the marital home" (Relf v Relf, 197 AD2d 611, 612 [1993]).
The court based its award to the defendant of $258,527 and sole title to the marital residencenot only on its finding that she was entitled to all of the equity in the home, but also, on certainfindings with respect to Maxi-Aids and the M & H property. Specifically, the court determinedthat the defendant was entitled to 40% of the plaintiff's one-half interest in the M & H property,as well as a 40% share of the total appreciated value of the plaintiff's one-third interest inMaxi-Aids.
Upon a review of the record, however, we find that the defendant is not entitled to any shareof the plaintiff's interest in the M & H property. The plaintiff acquired the property very shortlyafter the parties' May 1994 wedding. "Property acquired during the marriage is presumed to bemarital property and the party seeking to overcome such presumption has the burden of provingthat the property in dispute is separate property" (Embury v Embury, 49 AD3d 802, 804 [2008] [internal quotationmarks omitted]). Here, the plaintiff met his burden. Specifically, the plaintiff demonstrated thatthe M & H property was purchased with an $80,000 down payment from the plaintiff's father andbrother. The evidence reveals that, in contrast to the money given for the marital residence, thedown payment was intended as a gift to the plaintiff, rather than to both parties. The defendantnever had title to the property.
The defendant also is not entitled to any share of the appreciated value of the M & Hproperty. While there are circumstances under which "appreciation should, to the extent it wasproduced by efforts of the titled spouse, be considered a product of the marital partnership andhence, marital property," the appreciation remains separate property if it resulted purely frommarket forces, as opposed to the titled spouse's efforts (Price v Price, 69 NY2d 8, 18[1986]). Here, the record reflects that no efforts on the plaintiff's part resulted in the appreciationof value of the M & H property; rather, that property appreciated solely due to market forces(see Feldman v Feldman, 194 AD2d 207, 217 [1993]; Robertson v Robertson,186 AD2d 124, 125-126 [1992]).
With respect to the plaintiff's one-third interest in Maxi-Aids, although the plaintiff and hisfather attempted to downplay the plaintiff's efforts, the record reveals that the appreciation ofMaxi-Aids during the marriage was due, at least in part, to the plaintiff's active participation,which was facilitated by the defendant's indirect contributions as a homemaker. Accordingly, thedefendant is entitled to a share of the appreciated value of that asset (see Hartog vHartog, 85 NY2d 36, 47 [1995]; Price v Price, 69 NY2d at 17-18). The SupremeCourt, however, failed to articulate fully its basis for awarding the defendant 40% of thetotal appreciated value of the plaintiff's interest in Maxi-Aids, as opposed to a portionthereof. Before making the distributive award, the court should have considered the extent andsignificance of the plaintiff's efforts in relation to the active efforts of others and any additionalpassive or active factors, and determined what percentage of the total appreciation constitutedmarital property subject to equitable distribution (see Hartog v Hartog, 85 NY2d at48-49; cf. Imhof v Imhof, 259 AD2d 666, 666-667 [1999]; Ferrugiari vFerrugiari, 226 AD2d 498, 499 [1996]).
In light of the foregoing, the entire distributive award must be reconsidered and recalculated.Therefore, we remit the matter to the Supreme Court, Nassau County, for a new [*3]determination on the issue of equitable distribution.
The defendant also contends that the maintenance award is excessive, especially whencombined with the child support award and various additional expenses. "[T]he amount andduration of maintenance is a matter committed to the sound discretion of the trial court, andevery case must be determined on its own unique facts" (DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008] [internal quotationmarks omitted]). "The court may order maintenance in such amount as justice requiresconsidering, inter alia, the standard of living of the parties during the marriage, theincome and property of the parties, the distribution of marital property, the duration of themarriage, the health of the parties, the present and future earning capacity of both parties, theability of the party seeking maintenance to become self-supporting, and the reduced or lostlifetime earning capacity of the party seeking maintenance" (O'Sullivan v O'Sullivan,282 AD2d 586, 586 [2001] [internal quotation marks omitted]; see Hartog v Hartog, 85NY2d at 52). Additionally, "the court must consider the reasonable needs of the recipientspouse" (Chalif v Chalif, 298 AD2d 348, 348 [2002]). Here, the Supreme Court properlyconsidered the relevant factors, which justify the provision of a substantial maintenance award(id. at 348-349).
The plaintiff's contention that the seven-year duration of the maintenance award is excessiveis without merit. In light of, inter alia, the duration of the parties' marriage, the defendant'slimited education, the years she devoted to child-rearing, and the parties' standard of living, aperiod of seven years is entirely appropriate (see DiBlasi v DiBlasi, 48 AD3d at 404;O'Sullivan v O'Sullivan, 282 AD2d at 586; Morrissey v Morrissey, 259 AD2d472, 473 [1999]; Damato v Damato, 215 AD2d 348, 349 [1995]).
Although the Supreme Court properly calculated the plaintiff's annual child supportobligation, it then made a mathematical error in determining the weekly child support obligation.The plaintiff's weekly child support obligation is $677, which is derived by dividing $35,203 (theplaintiff's annual child support obligation) by 52 (see Matter of Kalapodas v Kalapodas,305 AD2d 1047, 1049 [2003]; Bohnsack v Bohnsack, 185 AD2d 533, 534 [1992]).
The plaintiff's remaining contentions are without merit. Moreover, to the extent that the prose defendant contends that the Supreme Court erred, we note that she failed to cross-appeal fromthe amended judgment. Mastro, J.P., Fisher, Angiolillo and Leventhal, JJ., concur.