| Noble v Noble |
| 2010 NY Slip Op 08401 [78 AD3d 1386] |
| November 18, 2010 |
| Appellate Division, Third Department |
| Carol Noble, Respondent, v Steve Noble,Appellant. |
—[*1] Boies, Schiller & Flexner, L.L.P., Albany (Adam R. Shaw of counsel), for respondent.
Peters, J.P. Appeal from a judgment of the Supreme Court (Teresi, J.), entered September 17,2009 in Albany County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
The parties were married in 1986 and have two children (born in 1988 and 1991). In July 2008,plaintiff commenced this action for divorce. The parties stipulated to the grounds for divorce and thevalue of certain items of marital property, but proceeded to a nonjury trial on the issues of equitabledistribution, maintenance, child support and counsel fees. Supreme Court, in adopting specificproposed findings of fact and conclusions of law submitted by the parties, ordered an equal division ofthe marital equity in the marital residence and the value of the real estate owned by defendant'sbusinesses, distributed the debt associated with those businesses to defendant and classified theremaining assets as separate property. The court also directed defendant to pay both child support andnondurational maintenance and granted plaintiff's application for counsel fees. Defendant now appeals.
Initially, "it is well established that the trial court must hear sufficient evidence in order to intelligentlymake the necessary findings and must state the reasons therefore in accordance with DomesticRelations Law § 236 (B)" (Bean vBean, 53 AD3d 718, 721 [2008]). Here, following five days of testimony from variouswitnesses and the receipt of numerous documents into evidence, the parties submitted nearly 100 pagesof proposed findings of fact and conclusions of law, each of which cited to the record for support andwas marked "found" or "not [*2]found" by Supreme Court. Inrendering its decision, the court did not abdicate its responsibilities by adopting the parties' findings andconclusions wholesale, but rather edited them by deleting, adding or modifying language and insertingadditional reasoning and awards (compareAltieri v Altieri, 35 AD3d 1093, 1096 [2006], with Capasso v Capasso, 119 AD2d268, 275-276 [1986]). Although the statutory factors are not specifically cited to, the court's factualfindings reveal that it did consider the relevant factors and adequately set forth the reasons for itsdecision (see Bean v Bean, 53 AD3d at 721-722; Rosenkranse v Rosenkranse, 290AD2d 685, 686 [2002]; Moschetti v Moschetti, 277 AD2d 838, 838-839 [2000]; Fraleyv Fraley, 235 AD2d 997, 997-998 [1997]). Under these circumstances, we find that SupremeCourt's decision sufficiently complies with the requirements of Domestic Relations Law § 236(B).
Relatedly, while Supreme Court did not violate the statute in this case, the practice of editing andthen adopting proposed findings of fact and conclusions of law is not recommended. Particularly whenutilized in the context of an equitable distribution determination, the practice has the potential to createconfusion and inconsistencies within the overall decision—as it did here with respect to thedistribution of plaintiff's personal account with RBC Wealth Management. Specifically, the court'sconclusions of law state that plaintiff's RBC account is separate property associated with "significantdebt[ ]" and not subject to equitable distribution while, at the same time, also state that the RBCaccount is subject to 50% distribution. Inasmuch as it is unclear as to how the court intended todistribute that asset, we remit for clarification (see Smith v Smith, 1 AD3d 870, 871 [2003]).
Next, Supreme Court's finding that defendant wastefully dissipated marital assets, a factor which itwas entitled to consider in equitably distributing the marital property (see Domestic RelationsLaw § 236 [B] [5] [d] [12]), is amply supported by evidence that defendant engaged inexcessive spending, made various unsecured loans without plaintiff's knowledge and invested in twobusinesses that resulted in no economic benefit to the parties. Defendant had been employed with NBTBank earning an annual income in excess of $80,000, but he resigned in 2007 after being faced withdismissal for simultaneously operating businesses that acted in direct competition with his employer.Defendant then liquidated his 401 (k) account, invested the approximately $110,000 into his twobusinesses and borrowed over $700,000 to cover start-up and other business costs. While obligatedon these debts and with the businesses operating at a loss, he made unsecured loans to friends andbusiness associates in amounts totaling over $165,000, none of which has been repaid. Moreover, at atime when it was clear that his businesses were suffering and notwithstanding his court-imposedrestrictions on spending, defendant spent an inordinate amount of money. He engaged in extensivetravel—funded by proceeds he received through an insurance settlement involving one of hiscompanies—in the months preceding the trial, spent nearly $10,000 in country club dues in 2009and thousands of dollars on restaurants, additional golf expenses, hotels, furnishings for his apartmentand Internet Web sites, all while failing to pay the mortgage on the marital home, court-ordered childsupport and maintenance and notwithstanding his court-imposed restriction on spending. Thus,according deference to Supreme Court's credibility determinations and assessment of the evidence(see Carlson-Subik v Subik, 257 AD2d 859, 862 [1999]), we cannot say that the finding ofwasteful dissipation was improper or that the court abused its considerable discretion in apportioning alldebt associated with defendant's businesses to defendant and declining to credit him with an equitableshare of the marital home furnishings as a consequence (see Altieri v Altieri, 35 AD3d at 1095;Brzuszkiewicz v Brzuszkiewicz, 28AD3d 860, 861 [2006]; Baker v Baker, 199 AD2d 967, 968 [1993]).[*3]
Nor are we persuaded that Supreme Court erred in refusing toimpute as income to plaintiff the monthly sums of money that she received from her mother during thetwo years preceding the trial. These funds were given to plaintiff to assist with her day-to-day needsand payment of bills during the time when defendant left his employment at NBT and, subsequently, themarital home, as well as during the pendency of this action when defendant failed to provide support forplaintiff and the children (see Isaacs v Isaacs, 246 AD2d 428, 428 [1998]). Moreover, plaintifftestified that there is no agreement that her mother continue to give her such sums of money (seeHuebscher v Huebscher, 206 AD2d 295, 296 [1994]). Considering the timing and discretionarynature of the gift-giving, the decision not to impute these funds as income was not an abuse ofdiscretion.
Similarly unavailing is defendant's assertion that Supreme Court improperly gave plaintiff a separateproperty credit for funds used to make the down payment on the marital home. The trial evidenceestablished that plaintiff was given $200,000 from her mother, in the form of two $100,000 checksmade out to her only, as a gift for use as a down payment on the marital home. Plaintiff then depositedthese funds into the parties' joint account and they were subsequently used for that purpose. Defendantdoes not dispute that the money was a gift to plaintiff that constituted her separate property when given(see Domestic Relations Law § 236 [B] [1] [d] [1]), but claims that the funds wereconverted to marital property when they were deposited into the parties' joint checking account.Although the transfer of separate property into a joint account raises a presumption that the funds aremarital property, "this presumption may be rebutted by proof that such deposits were made 'as a matterof convenience, without the intention of creating a beneficial interest' " (Fehring v Fehring, 58AD3d 1061, 1062 [2009], quoting Chamberlain v Chamberlain, 24 AD3d 589, 593 [2005]; see Duguev Dugue, 172 AD2d 974, 976 [1991]). To that end, plaintiff testified that she did not have atraditional individual checking account, and Supreme Court credited her testimony that she depositedthe moneys into the joint checking account because this was the only account she readily had access tofor this purpose. Furthermore, the funds were transferred into the joint account for a mere six weeks inanticipation of the closing on their home. Giving deference to Supreme Court's credibility determinations(see Gulbin v Moss-Gulbin, 45 AD3d1230, 1232 [2007], lv denied 10 NY3d 705 [2008]), we find no basis to disturb itsconclusion that plaintiff overcame the presumption that she intended to commingle her funds bydepositing them in the parties' joint account (see Brugge v Brugge, 245 AD2d 1113, 1114[1997]; McGarrity v McGarrity, 211 AD2d 669, 671 [1995]). Accordingly, plaintiff wasentitled to this credit reflecting the investment of her separate funds into the marital residence (see Pulver v Pulver, 40 AD3d 1315,1320 [2007]; Gonzalez v Gonzalez, 291 AD2d 373, 374 [2002]; Mink v Mink, 163AD2d 748, 749 [1990]).
Defendant's contention that Supreme Court engaged in improper "double counting" (Grunfeld vGrunfeld, 94 NY2d 696, 700 [2000]) is also without merit. The court did not equitably distributehis businesses and then improperly include future business profits and earnings in determining his incomefor purposes of awarding maintenance. The record makes clear that Supreme Court equitablydistributed only the stipulated value of the real estate owned by defendant's businesses, not anyfuture profits and earnings associated with the businesses themselves. Nor did any such future earningsand profits factor into Supreme Court's calculation of maintenance; rather, the court exercised itsdiscretion to impute income to defendant in the amount of his former salary at NBT (see generallyMatter of Knights v Knights, 71 NY2d 865, 866-867 [1988]).
Finally, reviewing the award of counsel fees to plaintiff, a discretionary determination [*4]requiring the consideration of the financial circumstances of both partiestogether with all the other circumstances of the case (see Johnson v Chapin, 12 NY3d 461, 467 [2009]; DeCabrera vCabrera-Rosete, 70 NY2d 879, 881 [1987]; Matter of Ballard v Davis, 259 AD2d 881,885 [1999], lv denied 94 NY2d 751 [1999]), we find no error. Considering the incomeimputed to defendant as a result of his earning potential and his interests in real property, he is in abetter financial position than plaintiff who, having not been employed for more than 20 years whileraising the children, just began a new job and has not yet realized any income additional to that whichshe receives from her trust accounts. Furthermore, defendant failed to pay court-ordered support andmaintenance during the seven months leading up to the trial, thereby leaving plaintiff to bear the burdenof all household, child and living expenses. Contrary to defendant's contention, "[t]he mere fact thatplaintiff may have been able to pay her own fees is but one factor to be considered" (Vicinanzo vVicinanzo, 193 AD2d 962, 966 [1993]; see Laura WW. v Peter WW., 50 AD3d 1292, 1292-1293 [2008];Mac Murray v Mac Murray, 187 AD2d 840, 841 [1992]). Under these circumstances, wecannot say that Supreme Court's decision to award plaintiff counsel fees constituted an abuse of itsconsiderable discretion (see Bellinger vBellinger, 46 AD3d 1200, 1203 [2007]; Dane v Dane, 260 AD2d 817, 818-819[1999]).
Defendant's remaining contentions, to the extent not specifically addressed herein, have beenreviewed and found to be lacking merit.
Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the facts,without costs, by vacating the conclusions of law regarding the distribution of plaintiff's RBC WealthManagement account; matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.