| Oliver v Oliver |
| 2010 NY Slip Op 01233 [70 AD3d 1428] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Evelyn D. Oliver, Respondent, v Benjamin F. Oliver,Appellant. |
—[*1] The Williams Law Firm, LLP, Batavia (Thomas Drake Williams of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Genesee County (Robert C. Noonan, A.J.),entered June 22, 2007 in a divorce action. The judgment, among other things, distributed themarital assets.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing in the third decretal paragraph that the proceeds from the liquidation of the parties'real property shall be applied equally to the credit card/vendor debt and the educational debt andthat the parties shall be jointly responsible for the educational debt, by providing in the fifthdecretal paragraph that the balance of the mortgage payments due to the parties on the formermarital property shall be divided equally between the parties, and by providing in the sixthdecretal paragraph that maintenance shall terminate on plaintiff's 62nd birthday and as modifiedthe judgment is affirmed without costs.
Memorandum: In this action seeking a divorce and ancillary relief, defendant husbandappeals from a judgment that, inter alia, distributed the marital assets and awarded maintenanceto plaintiff wife. It is well settled that " '[e]quitable distribution presents issues of fact to beresolved by the trial court, and its judgment should be upheld absent an abuse of discretion' "(Prasinos v Prasinos, 283 AD2d 913, 913 [2001]; see Booth v Booth, 24 AD3d 1238 [2005]). We agree withdefendant that Supreme Court abused its discretion in awarding plaintiff all of the mortgagepayments owed to the parties by the purchasers of property that the parties sold during theirmarriage. The evidence in the record, including the testimony of both parties, establishes thatthey jointly owned the property, that they both contributed to its maintenance and operation, andthat they both agreed to take the mortgage as part of the purchase price of the property.Consequently, the balance of the mortgage payments due shall be divided equally between theparties. We therefore modify the judgment accordingly. It is also well settled that trial courts "aregranted substantial discretion in determining what distribution of maritalproperty[—including debt—] will be equitable under all the circumstances" (McKeever v McKeever, 8 AD3d702, 702 [2004] [internal quotation marks omitted]). Here, however, it is undisputed that theparties agreed that they each would contribute to their children's education, and they arranged todo so by having plaintiff use her credit cards to support the children in college, while defendantcosigned for the children's [*2]student loans and made thepayments on those loans. We thus conclude that the court abused its discretion in directing thatthe proceeds from the liquidation of the parties' real property be applied first to the creditcard/vendor debt and then to the educational debt, with any remaining educational debt to bepaid solely by defendant. We therefore further modify the judgment accordingly.
We reject the remainder of defendant's contentions concerning the equitable distribution ofthe marital assets and debts. Defendant is correct that a court's distribution of marital assets maybe an abuse of discretion in the event that a court directs that marital assets are to be used to paydebt that was incurred for personal purposes unrelated to the marriage (see Godfryd vGodfryd, 201 AD2d 927, 928 [1994]; see also McKeever, 8 AD3d at 703; Jonasv Jonas, 241 AD2d 839, 840 [1997]), and that, here, the court agreed with defendant thatplaintiff engaged in "economic misconduct or malfeasance." The court further determined,however, that defendant also engaged in such conduct and balanced defendant's conduct againstthat of plaintiff. Inasmuch as defendant does not address that part of the court's determinationwith respect to his own conduct, we see no basis upon which to disturb the court's conclusionthat the credit card debt should be paid using marital assets.
Contrary to defendant's further contention, the court properly set forth the factors itconsidered in determining the amount and duration of the maintenance award (see McBride-Head v Head, 23 AD3d1010, 1011 [2005]; Kelly vKelly, 19 AD3d 1104, 1106 [2005], appeal dismissed 5 NY3d 847, 6 NY3d 803[2005]). "Moreover, the court did not abuse its discretion in awarding maintenance to plaintiff inthe amount and duration specified" (Saylor v Saylor, 32 AD3d 1358, 1359 [2006]). We note, however,that the court specified in its decision that maintenance shall terminate upon the 62nd birthday ofplaintiff, whereas the judgment specifies that maintenance shall terminate upon her 67thbirthday. Where, as here, there is a conflict between the court's decision and judgment, thedecision controls (see Pauk v Pauk, 232 AD2d 386, 390-391 [1996], lv dismissed89 NY2d 982 [1997]; Green v Morris, 156 AD2d 331, 331-332 [1989], lvdenied 75 NY2d 705 [1990], rearg denied 75 NY2d 1005 [1990]; see generallyMatter of Christina M., 247 AD2d 867 [1998], lv denied 91 NY2d 812 [1998];Di Prospero v Ford Motor Co., 105 AD2d 479, 480 [1984]). We therefore further modifythe judgment accordingly.
Finally, plaintiff did not take a cross appeal from the judgment and thus is precluded fromobtaining the affirmative relief that she seeks (see Millard v Alliance Laundry Sys., LLC, 28 AD3d 1145, 1148[2006]; see generally Hecht v City of New York, 60 NY2d 57, 61 [1983]).Present—Scudder, P.J., Martoche, Smith, Carni and Green, JJ.