| Frey v Frey |
| 2009 NY Slip Op 09614 [68 AD3d 1052] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Melissa J. Frey, Respondent-Appellant, v Frederick R.Frey, Jr., Appellant-Respondent. |
—[*1] John Ray, Miller Place, N.Y. (Robert R. Meguin of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.),entered December 12, 2008, which, upon a decision of the same court dated October 15, 2008,made after a nonjury trial, inter alia, awarded him a separate property credit in the sum of only$213,962.37, awarded the plaintiff the sum of $8,800 representing her 20% share of the value ofhis business, and directed that he was to be solely liable for any income taxes, interest, andpenalties with respect to certain income earned by him during the marriage, and the plaintiffcross-appeals, as limited by her brief, from so much of the same judgment as denied her anaward of an attorney's fee.
Ordered that the judgment is modified, on the law and in the exercise of discretion, bydeleting the provision thereof awarding the plaintiff the sum of $8,800 representing her 20%share of the value of the defendant's business; as so modified, the judgment is affirmed insofar asappealed and cross-appealed from, without costs or disbursements.
Under the circumstances of this case, where the parties, for the most part, maintainedseparate finances, and determined from the start of the marriage to file separate tax returns, thetrial court providently exercised its discretion in directing that the defendant, who failed to filetax returns throughout the duration of the marriage, bear the responsibility for paying incometaxes, interest, and penalties (see Costello v Costello, 304 AD2d 517, 519 [2003];Fiedler v Fiedler, 230 AD2d 822, 823 [1996]; cf. Conway v Conway, 29 AD3d725 [2006]; LaBarre v LaBarre, 251 AD2d 1008, 1009 [1998]; Capasso vCapasso, 129 AD2d 267, 290-293 [1987]). The plaintiff had no role whatsoever in theoperation of the defendant's business, and she did not learn that he failed to file tax returns untilafter she commenced the instant action. The husband's conduct constituted economic fault,justifying the trial court's determination (see Kaur v Singh, 44 AD3d 622, 623 [2007];Blickstein v Blickstein, 99 AD2d 287, 293 [1984]).
The defendant failed to overcome the presumption that property he contends constitutesseparate property, which was acquired during the marriage, was marital property (see [*2]Embury v Embury, 49 AD3d 802, 804 [2008]; Palumbo vPalumbo, 10 AD3d 680, 681-682 [2004]; Solomon v Solomon, 307 AD2d 558, 559[2003]; Heine v Heine, 176 AD2d 77, 83 [1992]). In addition, the Supreme Courtprovidently exercised its discretion, after examining the circumstances of the case and thepertinent statutory factors, in distributing the value of the marital home, the plaintiff's pension,and the plaintiff's investments, equally between the parties (see Domestic Relations Law§ 236 [B] [5] [d]; Smith v Smith, 8 AD3d 728, 729 [2004]).
However, the Supreme Court erred in awarding the plaintiff the sum of $8,800 representingher 20% share of the value of the defendant's business. Under the circumstances of this case, inorder that the parties' property be equitably distributed to achieve the ultimate goal of fairness(see Coffey v Coffey, 119 AD2d 620, 622 [1986]), the award to the plaintiff of 20% ofthe value of the defendant's business, which was separate property, was not warranted.
The Supreme Court correctly denied the plaintiff's request for an attorney's fee (seeChi-Yuan Hwang v Hwang, 308 AD2d 560, 561 [2003]).
The defendant's remaining contentions are without merit. Skelos, J.P., Eng, Leventhal andChambers, JJ., concur.