| Vanyo v Vanyo |
| 2010 NY Slip Op 09733 [79 AD3d 1751] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Ronald Vanyo, Respondent, v Ann Vanyo,Appellant. |
—[*1] Law Office of Ralph C. Lorigo, West Seneca (Robert R. Vario of counsel), forplaintiff-respondent. Pamela Thibodeau, Attorney for the Children, Williamsville, for Michael V. and MatthewV.
Appeal from a judgment of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredSeptember 14, 2009 in a divorce action. The judgment, inter alia, equitably distributed themarital property of the parties.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating decretal paragraphs 5, 7 and 14 and as modified the judgment is affirmed withoutcosts, and the matter is remitted to Supreme Court, Erie County, for further proceedings inaccordance with the following memorandum: Defendant wife appeals from a judgment that interalia, granted plaintiff husband sole custody of the parties' two children, provided for childsupport, and distributed the marital property and debt. Preliminarily, we reject the wife'scontention that there was a conflict between Supreme Court's decisions and the judgment thatwas entered. The judgment merely clarified the decisions (see DeSantis v DeSantis, 205AD2d 928, 930 [1994]), and otherwise sought to address the parties' contentions in their entirety.Moreover, the wife failed to preserve for our review her contention that the court failed to credither separate property contribution to the marital home inasmuch as she previously contended thatthe appreciation on her separate property, which was the only portion of the sale of that propertyapplied to the purchase of the marital home, was in fact marital property (see generally Hurley v Hurley, 71AD3d 1470 [2010]). In any event, the wife's contention lacks merit, because the evidenceestablishes that the appreciation on that separate property resulted from the combined efforts ofboth parties to improve that property (see Price v Price, 69 NY2d 8, 11 [1986]; see also Smith v Winter, 64 AD3d1218 [2009], lv denied 13 NY3d 709 [2009]). The court also properly concluded thatproperty purchased by the husband prior to the marriage remained his separate property.Although the wife presented evidence establishing that she did in fact contribute to the property,she failed to present the requisite evidence establishing that the property appreciated in value as aresult of her contributions (see generallyEmbury v Embury, 49 AD3d 802, 804 [2008]).[*2]
Contrary to the wife's further contention, the courtproperly awarded sole custody of the parties' two children to the husband. The parities here were" 'so embattled and embittered as to effectively preclude joint decision making' " (Capodiferro v Capodiferro, 77 AD3d1449, 1450 [2010]). Moreover, there is a sound and substantial basis in the recordsupporting the court's determination, i.e., that the award of sole custody to the father was in thechildren's best interests (see generallyWideman v Wideman, 38 AD3d 1318, 1319 [2007]).
We agree with the wife, however, that certain portions of the judgment must be vacated, andwe modify the judgment accordingly and remit the matter for a further hearing with respectthereto. As the wife correctly contends, the court erred in calculating child support by applying acombined parental income cap of $130,000 to its calculations before the effective date of thelegislation amending the amount of the income cap from $80,000 to $130,000 (seeDomestic Relations Law § 240 [1-b] [c] [3]). Rather, the court should have applied the$80,000 combined parental income cap that was in effect at the time judgment was rendered(see § 240 [1-b] [c] [2]). Moreover, to the extent that the court awarded childsupport on the parties' income in excess of the $80,000 cap, the court was required to articulateits reasons for doing so (see § 240 [1-b] [c] [3]; [f]; Matter of Cassano vCassano, 85 NY2d 649, 655 [1995]). We therefore modify the judgment by vacating theamount awarded for child support, and we remit the matter to Supreme Court to determine theamount of child support to be paid by the wife to the husband in compliance with the ChildSupport Standards Act, following a hearing if necessary (see Irene v Irene [appeal No. 2],41 AD3d 1179, 1181 [2007]).
Two further modifications of the judgment are required, both of which also require remittalto Supreme Court. First, the court failed to make a finding concerning the fair market value of themarital residence at the time of trial (see generally Wittig v Wittig, 258 AD2d 883, 884[1999]), despite having distributed that property based on a calculation that required the court tomake a finding of the property's fair market value. The lack of such a finding, and the lack ofreliable evidence adduced on the issue at trial to enable this Court to make its own finding,requires vacatur of the judgment in that respect, as well as remittal to Supreme Court for afinding on that issue, following a hearing if necessary (see Hoffman v Hoffman, 31 AD3d 1125, 1126 [2006]). Second, thecourt erred in allocating credit card debt to the wife without articulating its reasons for doing so.In distributing debt, a court is required to consider the factors set forth in Domestic RelationsLaw § 236 (B) (5) (d) and to state the factors that influenced its decision in accordancewith section 236 (B) (5) (g) (see Burns vBurns, 70 AD3d 1501, 1503 [2010]). We thus further modify the judgment accordingly,and we remit the matter to Supreme Court for further consideration of that issue, following ahearing if necessary (see Capasso v Capasso, 119 AD2d 268, 272 [1986]).Present—Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.