| Aloi v Simoni |
| 2011 NY Slip Op 01605 [82 AD3d 683] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Cindy L. Aloi, Appellant-Respondent, v Carl D. Simoni,Respondent- Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from (1) so much of an order of the Supreme Court, Orange County (Bivona, J.), dated June 24,2008, as, after a hearing, denied her application for an award of an attorney's fee, (2) statedportions of a judgment of the same court dated June 24, 2008, and (3) stated portions of anamended judgment of the same court dated April 13, 2009, which, upon a decision datedDecember 27, 2007, made after a nonjury trial, and upon the order dated June 24, 2008, inter alia,equitably distributed the parties' assets, and the defendant cross-appeals, as limited by his brief,from stated portions of the amended judgment.
Ordered that the appeal from the order dated June 24, 2008, is dismissed; and it is further,
Ordered that the appeal from the judgment dated June 24, 2008, is dismissed, as thejudgment was superseded by the amended judgment dated April 13, 2009; and it is further,
Ordered that the amended judgment dated April 13, 2009, is modified, on the law, on thefacts, and in the exercise of discretion, (1) by deleting the provision thereof determining that theplaintiff's retirement accounts appreciated by the sum of $296,545.26 during the course of themarriage and directing that in order to equalize the parties' retirement account assets, thedefendant is to pay the sum of $76,784.87 directly to the plaintiff through tender of cash orissuance of a qualified domestic relations order, and substituting therefor a provision determiningthat the plaintiff's retirement accounts appreciated by the sum of $25,189 and directing thedefendant to pay the sum of $212,463 directly to the plaintiff by the same means, (2) by adding aprovision thereto awarding the plaintiff interest on the distributive award from the date of thedecision until the entry of the judgment, and from the entry of the judgment to the date ofpayment, and (3) by adding a provision thereto awarding the plaintiff an attorney's fee in the sumof $81,103; as so modified, the amended judgment is affirmed insofar as appealed andcross-appealed from, with costs to the plaintiff, the order dated June 24, 2008, is modifiedaccordingly, and the matter is remitted to the [*2]Supreme Court,Orange County, for the entry of an appropriate amended judgment.
The appeal from the intermediate order dated June 24, 2008, must be dismissed. No appeallies as of right from an order which does not decide a motion made on notice (see CPLR5701 [a] [2]), and we decline to grant leave to appeal in view of the fact that a final judgment hasbeen entered (see generally Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raisedon the appeal from that order are brought up for review and have been considered on the appealfrom the amended judgment dated April 13, 2009 (see CPLR 5501 [a] [1]).
"A trial court is vested with broad discretion in making an equitable distribution of maritalproperty, and 'unless it can be shown that the court improvidently exercised that discretion, itsdetermination 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]; Oster v Goldberg,226 AD2d 515 [1996]). Moreover, where the determination as to equitable distribution has beenmade after a nonjury trial, the trial court's assessment of the credibility of witnesses is affordedgreat weight on appeal (see Schwartz v Schwartz, 67 AD3d at 990; Jones-Bertrand v Bertrand, 59 AD3d391 [2009]; Grasso v Grasso,47 AD3d 762 [2008]). Here, except to the extent indicated below, we perceive no basis fordisturbing the Supreme Court's determinations regarding the equitable distribution of the parties'property.
The Supreme Court properly concluded that the plaintiff failed to meet her burden of provingby a preponderance of the evidence that the defendant wasted or dissipated marital assets (see Spera v Spera, 71 AD3d 661[2010]; Morton v Morton, 69 AD3d693 [2010]; Raynor v Raynor,68 AD3d 835, 838 [2009]). The evidence demonstrated that a decrease in the value ofcertain assets was attributable to market forces and, thus, was passive in nature, and not due todissipation or wasteful conduct on the part of the defendant (see Morton v Morton, 69 AD3d 693 [2010]). Further, with respectto certain funds allegedly transferred by the defendant to his son shortly before thecommencement date of the divorce action, the plaintiff offered no evidence to support theparticular sum she claims was transferred, and the defendant's evidence established that certainfunds borrowed by the son from a line of credit account held by a corporation owned by thedefendant were repaid.
The defendant asserts that because the Supreme Court only gave him a separate propertycredit in the sum of $1,883,728, which represented the amount of certain personal and businessaccounts consisting of stocks and bonds, and a retirement account, the Supreme Courtdisregarded the stipulation of the parties that the defendant's premarital net worth was$2,500,000. Contrary to the defendant's contention, the Supreme Court did not disregard theparties' stipulation. The defendant conflates his premarital net worth with his separate propertycredit. Even if the stipulated premarital net worth included the sale value of two residentialproperties, as the defendant claims, the defendant failed to trace the funds from the sale of theresidential properties and prove that they remained separate (see Massimi v Massimi, 35 AD3d 400, 402 [2006]). Relatedly, thedefendant failed to offer any rationale for reducing the amount of the appreciation of thedefendant's personal accounts (consisting of stocks and bonds) by the price he obtained for hisresidential properties.
The Supreme Court erred, however, in disregarding the parties' stipulation that theappreciation in the value of the plaintiff's retirement account during the course of the marriagewas the sum of $25,189. The plaintiff is entitled to 50% of the sum of the appreciation of theparties' respective retirement accounts (50% of $450,115 + $25,189 = $237,652). In calculatingthe amount to be paid to the plaintiff, the defendant is entitled to a credit of the appreciationremaining in the plaintiff's account ($25,189). Accordingly, the amended judgment must bemodified to direct the defendant to pay the plaintiff the sum of $212,463.
The Supreme Court also erred in failing to award interest on the plaintiff's distributive awardfrom the date of the decision until the entry of the judgment (see CPLR 5002; Appel v Appel, 54 AD3d 786[2008]; Bartek v Draper, 309 AD2d 825 [2003]; Haymes v Haymes, 298 AD2d117 [2002]), and from the entry of the judgment to the date of payment (see CPLR 5003;Gold v Gold, 276 AD2d 590, 591 [2000]).
The Supreme Court improvidently exercised its discretion in denying the plaintiff'sapplication for an attorney's fee. "Pursuant to Domestic Relations Law § 237 (a), a court ina [*3]divorce action may award counsel fees to a spouse 'toenable that spouse to carry on or defend the action or proceeding as, in the court's discretion,justice requires, having regard to the circumstances of the case and the respective parties' "(DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987], quoting Domestic RelationsLaw § 237 [former (a)]). "This enactment, which has deep statutory roots, is designed toredress the economic disparity between the monied spouse and the non-monied spouse"(O'Shea v O'Shea, 93 NY2d 187, 190 [1999]). In exercising its discretionary power toaward an attorney's fee, the court may consider, among other things, "whether either party hasengaged in conduct or taken positions resulting in a delay of the proceedings or unnecessarylitigation" (Prichep v Prichep, 52AD3d 61, 64 [2008]; see Quinn vQuinn, 73 AD3d 887, 887 [2010]). Here, there is a significant economic disparitybetween the defendant and the plaintiff, and the complexity of the defendant's businessendeavors, as well as the defendant's uncooperativeness with discovery and with sorting out hisfinancial affairs, greatly contributed to the high cost of the litigation. Under these circumstances,we deem it appropriate to award the plaintiff one half of her total counsel fees, which, aftercrediting the defendant for his payment of interim counsel fees, amounts to the sum of $81,103.
The parties' remaining contentions are without merit. Skelos, J.P., Eng, Hall and Lott, JJ.,concur.