| Spera v Spera |
| 2010 NY Slip Op 01782 [71 AD3d 661] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Dennis Spera, Respondent, v Maria Spera,Appellant. |
—[*1] Dennis Spera, Brookhaven, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.),entered July 30, 2008, which, upon a decision of the same court, dated June 19, 2008, made aftera nonjury trial, inter alia, (1) directed her to provide the plaintiff with records regarding thebalance and/or payments and any distributions she received for an Invesco Fund and anAmerican Express Investment Fund and to forward to the plaintiff one half of any distributionsshe received, and (2) directed her to pay the plaintiff the sum of $21,200 from her share of thesale of the proceeds of the marital residence, held in escrow by her counsel.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by deleting the eighth and ninth decretal paragraphs thereof regarding the Invesco Fund andAmerican Express Investment Fund, and (2) deleting the eleventh decretal paragraph thereofdirecting the defendant to pay the plaintiff the sum of $21,200 from her share of the proceeds ofthe sale of the marital residence held in escrow and substituting therefor a provision directing thedefendant to pay the plaintiff the sum of $6,700 from her share of the proceeds of the sale of themarital residence held in escrow; as so modified, the judgment is affirmed insofar as appealedfrom, with costs to the defendant.
"In fashioning an award of equitable distribution, the Supreme Court is required to discussthe statutory factors it relied upon in distributing marital property" (Milnes v Milnes, 50 AD3d 750,750 [2008]; see Payne v Payne, 4AD3d 512, 513-514 [2004]). Nonetheless, "[w]here it is evident that the Supreme Courtconsidered all relevant factors and the reasons for its decision are articulated, the court is notrequired to specifically cite to and analyze each statutory factor" (Milnes v Milnes, 50AD3d at 750, citing O'Brien v O'Brien, 66 NY2d 576, 589 [1985]). When, as here, theSupreme Court fails to set forth the statutory factors it considered, and it is not evident from therecord that the court considered all the relevant factors, this Court may, in the interest of judicialeconomy, exercise its power to determine the equitable distribution of the parties' maritalproperty (see Fanelli v Fanelli, 215 AD2d 718, 720 [1995]; Rossi v Rossi, 163AD2d 376, 377 [1990]), "where the record upon which the trial court would base such adetermination is fully before it" (Payne v Payne, 4 AD3d at 514). Under the instantcircumstances, we therefore turn to the plaintiff's contentions on appeal regarding equitabledistribution, rather than holding the appeal in abeyance and [*2]remitting the matter to the Supreme Court for compliance withDomestic Relations Law § 236 (B) (5) (g) (see Lounsbury v Lounsbury, 300AD2d 812, 817 [2002]; Chasin v Chasin, 182 AD2d 862, 864 [1992]).
Although the plaintiff presented evidence that the parties' joint Invesco Fund and AmericanExpress Investment Fund existed and had some value in 2001, he presented no evidence of theirexistence or value as of the date of the commencement of the action in 2005. Indeed, the plaintifftestified on direct examination that he had no knowledge whatsoever of what became of theseaccounts. Accordingly, the Supreme Court lacked an evidentiary basis upon which to make anyaward to the plaintiff with respect to these claimed investment funds (see Burtchaell v Burtchaell, 42 AD3d783, 786 [2007]; Seckler-Roode vRoode, 36 AD3d 889, 890 [2007]; Massimi v Massimi, 35 AD3d 400, 403 [2006]; Burgio vBurgio, 278 AD2d 767, 769 [2000]).
At the time the plaintiff depleted his 401(k) savings account at the end of December 2005,the total amount of money he withdrew from the account totaled $60,767.04, of which hereceived a net payment of $29,654.22, after deductions for an outstanding loan and penalties.According to the plaintiff, this sum was expended for various marital "household expenses" andto pay off prior loans that he had taken against the account. However, he failed to provide anyevidence of how these 401(k) funds were expended, even though he testified that the moneyswere exclusively deposited into a personal account that he opened at Bank of America.
Thus, the plaintiff failed to meet his burden of tracing the use of these claimed separatefunds to establish that they were used to pay for marital expenses so as to entitle him to aseparate property credit (see Milnes v Milnes, 50 AD3d at 751; Thomas vThomas, 145 AD2d 477, 477-478 [1988]). Accordingly, the Supreme Court erred increditing the plaintiff with $14,500, representing one half of the approximately $29,000 that heclaimed to have expended on marital expenses from separate 401(k) savings account funds.However, the Supreme Court properly credited the plaintiff with the additional sum of $6,700,representing one half of undisputed marital expenses.
Although the defendant contends that she is entitled to an additional credit for the plaintiff'swasteful dissipation of marital funds by unnecessarily incurring taxes and early withdrawalpenalties when he cashed out his 401(k) savings account, she did not submit any evidence toestablish the marital nature of this asset. Indeed, at trial, the defendant did not in any way contestthe separate nature of this account. Moreover, there is no evidence in the record regarding whenthe plaintiff first acquired the 401(k) account, or how much money, if any, was deposited into theaccount during the marriage (cf. Shyuev Tarn, 6 AD3d 521, 521 [2004]). Thus, having failed to meet her burden ofestablishing the marital nature of the money in this account, the defendant was not entitled to acredit for the alleged wasteful dissipation of assets (see Damas v Damas, 51 AD3d 709, 710 [2008]; Sinha v Sinha, 17 AD3d 131, 134[2005]).
" 'Property acquired during the marriage is presumed to be marital property and the partyseeking to overcome such presumption has the burden of proving that the property in dispute isseparate property' " (Massimi v Massimi, 35 AD3d at 402, quoting Judson vJudson, 255 AD2d 656, 657 [1998]). "Marital property is to be viewed broadly, whileseparate property is to be viewed narrowly" (Steinberg v Steinberg, 59 AD3d 702, 704 [2009]). In addition,"[s]eparate property can be transmuted into marital property when the actions of the titled spousedemonstrate his intent to transform the character of the property from separate to marital," by,for example, depositing otherwise separate funds into a joint marital account and utilizing themfor marital expenses (Imhof v Imhof, 259 AD2d 666, 667 [1999]). "Where, as here, aparty fails to trace sources of money claimed to be separate property, a court may treat it asmarital property" (Steinberg v Steinberg, 59 AD3d at 704).
Not only did the defendant fail to establish the source of any of the funds she claimed wereseparate, she also deposited these funds into a marital account which was used for maritalexpenses. Although she produced bank statements showing what she claimed were deposits ofseparate funds, she introduced no evidence of the source of these funds to establish their separatenature. Under these circumstances, the defendant failed to establish any entitlement to a separateproperty credit.
This Court does not address the defendant's remaining contentions, regarding the [*3]provisions of the judgment addressing the parties' income taxreturns and the parties' recreational vehicle, as they were raised for the first time in her replybrief (see People v Ford, 69 NY2d 775, 777 [1987]; Miller v Brust, 278 AD2d462, 464 [2000]; Sousa v American Ref-Fuel Co. of Hempstead, 258 AD2d 514, 515[1999]; Daly v Messina, 228 AD2d 542, 542 [1996]; State Farm Fire & Cas. Co. vLiMauro, 103 AD2d 514, 521-522 [1984], affd 65 NY2d 369 [1985]). Skelos, J.P.,Covello, Balkin and Austin, JJ., concur.