| Richter v Richter |
| 2010 NY Slip Op 07218 [77 AD3d 1470] |
| October 8, 2010 |
| Appellate Division, Fourth Department |
| Gloria A. Richter, Respondent, v Ralph C. Richter,Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Onondaga County (Martha Walsh Hood, A.J.),entered February 9, 2009 in a divorce action. The judgment, inter alia, equitably distributed the maritalproperty of the parties.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law bydeleting the 11th decretal paragraph insofar as it requires defendant to provide a life insurance policy orannuity sufficient to protect plaintiff's share of the pension received by defendant until plaintiff's 84thbirthday and as modified the judgment is affirmed without costs, and the matter is remitted to SupremeCourt, Onondaga County, for a hearing in accordance with the following memorandum: Defendantappeals from a judgment of divorce that, inter alia, directed him to pay child support and a portion ofplaintiff's counsel fees, as well as distributed marital property. Contrary to defendant's contention,Supreme Court properly concluded that the property located in Vermont was marital property. Thefunds from defendant's inheritances, which were used to purchase and improve the property, werecommingled with marital funds in a joint account (see Banking Law § 675 [b];Di Nardo v Di Nardo, 144 AD2d 906 [1988]), and defendant failed to establish by clearand convincing evidence "that [the] joint account was established solely for the purpose ofconvenience" (Kay v Kay, 302 AD2d 711, 713 [2003] [emphasis added]; see Crescimanno v Crescimanno, 33 AD3d649 [2006]). Contrary to defendant's further contention, the court did not abuse its discretion inawarding plaintiff counsel fees (see Domestic Relations Law § 237 [b]; McBride-Head v Head, 23 AD3d1010 [2005]; Zielinski v Zielinski, 289 AD2d 1017 [2001]).
Although defendant contends that it is an economic burden to require him to purchase a lifeinsurance policy or annuity to ensure that plaintiff receives her share of his pension, the record does notestablish the amount of insurance necessary or the cost of purchasing and maintaining such insurance.We therefore modify the judgment accordingly, and we remit the matter to Supreme Court for a hearingto determine the amount of life insurance required and the equitable apportionment of the costs (seeDomestic Relations Law § 236 [B] [8] [a]; Hendricks v Hendricks, 13 AD3d 928, 930 [2004]; see alsoHaydock v Haydock, 254 AD2d 577, 579-580 [1998]). Present—Centra, J.P., Peradotto,Carni, Lindley and Sconiers, JJ.