| Alper v Alper |
| 2010 NY Slip Op 07301 [77 AD3d 694] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Nancy Alper, Appellant, v Robert Alper,Respondent. |
—[*1] Wolfson & Carroll, New York, N.Y. (Michael G. Wolfson of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Kings County (Prus, J.), dated December 23,2008, as, upon a decision dated October 8, 2008, made after a nonjury trial, awarded her zeropercent of the marital residence and certain other marital assets.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"While the distribution of marital property must be equitable, there is no requirement that theassets be split evenly" (Giokas vGiokas, 73 AD3d 688, 689 [2010]; see DeSouza-Brown v Brown, 71 AD3d 946 [2010]; Arrigo v Arrigo, 38 AD3d 807[2007]). "A trial court is vested with broad discretion in making an equitable distribution ofmarital property, and 'unless it can be shown that the court improvidently exercised thatdiscretion, its determination should not be disturbed' " (Schwartz v Schwartz, 67 AD3d 989, 990 [2009], quoting Saleh v Saleh, 40 AD3d 617,617-618 [2007]; see Sebag v Sebag, 294 AD2d 560 [2002]). Moreover, where, as here,the determination as to equitable distribution has been made after a nonjury trial, the trial court'sassessment of the credibility of witnesses is afforded great weight on appeal (see Schwartz vSchwartz, 67 AD3d at 990; Jones-Bertrand v Bertrand, 59 AD3d 391 [2009]; Grasso v Grasso, 47 AD3d 762,764 [2008]; Antes v Antes, 304 AD2d 597, 597-598 [2003]). Here, we see no basis fordisturbing the Supreme Court's determinations regarding the equitable distribution of the parties'property.
As the record supports the Supreme Court's determination that, although both parties workedthroughout the marriage, the plaintiff contributed "little, if any, financial support to themarriage," and did not contribute at all to the purchase, and only minimally to the maintenance,of the marital home, the Supreme Court providently exercised its discretion in denying her anyinterest in the marital residence (see Moody v Moody, 172 AD2d 730 [1991]; Mahlabv Mahlab, 143 AD2d 116, 116-117 [1988]; Barnes v Barnes, 106 AD2d 535 [1984]).
Likewise, the Supreme Court providently exercised its discretion in rejecting the plaintiff'sclaim that she was entitled to equitable distribution of the appreciation in value of the maritalresidence and the defendant's country home, bought prior to the marriage. "[I]n order to obtainequitable distribution of the appreciation in value of the [defendant's] interest in the propert[y],the [plaintiff] was required to demonstrate the manner in which [her] contributions [*2]resulted in the increase in value and the amount of the increasewhich was attributable to [her] efforts" (Elmaleh v Elmaleh, 184 AD2d 544, 545 [1992];see Embury v Embury, 49 AD3d802, 804 [2008]). The parties' conflicting testimony as to the plaintiff's "direct contributionof . . . time and labor toward the improvements made to [these assets] presented aquestion of credibility which [the] Supreme Court resolved in favor of [the defendant]"(Guarnier v Guarnier, 155 AD2d 744, 745 [1989]). Such a credibility determination "isafforded great weight on appeal" (Schwartz v Schwartz, 67 AD3d at 990; see Jones-Bertrand v Bertrand, 59AD3d 391 [2009]; Grasso v Grasso, 47 AD3d at 764; Antes v Antes, 304AD2d at 597-598).
With regard to the defendant's cash and securities, the Supreme Court properly found that theplaintiff had failed to proffer any documentary or testimonial proof regarding whether theseassets were separate or marital. In any event, the Supreme Court concluded, and the recordshows, that the plaintiff made little or no financial contribution to the marriage, but rather, spentall her money on herself and her daughter from a prior marriage (see Arrigo v Arrigo, 38 AD3d 807[2007]; Dugan v Dugan, 238 AD2d 741, 743 [1997]; Kaplinsky v Kaplinsky, 198AD2d 212, 213 [1993]; Kobylack v Kobylack, 111 AD2d 221, 222 [1985]). Under thesecircumstances, and where, as stated previously, both parties worked throughout the marriage,there were no children of the marriage, and the parties were separated for 10 of their 20 years ofmarriage, "to award [the plaintiff] any equitable share in the [defendant's cash and securities]would . . . provide [her] with an economic advantage merely by virtue of the factthat [she] was married to [the defendant]" (Barnes v Barnes, 106 AD2d at 536).
With regard to the vacant land in Greene County, while it is undisputedly marital property,the plaintiff, as the nontitled spouse, "had the burden of proving the asset's value so as to affordthe court a sufficient basis upon which to make a distributive award" (Iwahara v Iwahara,226 AD2d 346, 347 [1996]; see Antoian v Antoian, 215 AD2d 421, 422 [1995];Gredel v Gredel, 128 AD2d 834 [1987]). As the plaintiff failed to meet her burden, theSupreme Court properly declined to make a distributive award regarding the property. Mastro,J.P., Chambers, Roman and Sgroi, JJ., concur.