| Le v Le |
| 2011 NY Slip Op 01806 [82 AD3d 845] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Stephanie Le, Respondent, v Kevin Le, Appellant. Lynn J.Brustein-Kamel et al., Nonparty Appellants. |
—[*1] Kevin Le, Pearl River, N.Y., defendant-appellant pro se.
In an action for a divorce and ancillary relief, the nonparties, Lynn J. Brustein-Kampel andAbel & Brustein-Kampel, P.C., appeal, as limited by their brief, from so much of a judgment ofthe Supreme Court, Rockland County (Christopher, J.), dated February 18, 2009, as failed toaward them counsel fees, and the defendant separately appeals, as limited by his brief, fromstated portions of the same judgment which, inter alia, upon a decision of the same court datedNovember 10, 2008, made after a nonjury trial, awarded custody of the parties' three children tothe plaintiff, awarded the plaintiff a two-thirds share of the proceeds of the sale of the maritalresidence with a credit for "the difference between the princip[al] balance of the mortgage as ofMarch 22, 2007 and the amount due at closing, . . . after payment of closing costsand joint liens, as long as there are monies available from the proceeds," directed that theplaintiff was not required to pay maintenance to the defendant for the months that he resided inthe marital residence, and awarded the plaintiff child support in the sum of $50 per month andarrears totaling $988.33.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof awarding the plaintiff a credit for "the difference between theprincip[al] balance of the mortgage as of March 22, 2007 and the amount due at closing,. . . after payment of closing costs and joint liens as long as there are moniesavailable from the proceeds," and substituting therefor a provision awarding the plaintiff a creditfor 50% of the difference between the principal balance of the mortgage as of March 22, 2007,and the amount due at closing, . . . after payment of closing costs and joint liens, aslong as there are monies available from the proceeds; as so modified, the judgment is affirmedinsofar as appealed from, without costs and disbursements.
Contrary to the defendant's contention, the plaintiff is entitled to receive a credit against theproceeds of the sale of the marital residence for the money that she paid to reduce the balance ofthe mortgage during the pendency of the divorce action (see Markopoulos vMarkopoulos, 274 AD2d 457 [2000]). She made these payments without any contributionfrom the defendant (see e.g. Freigang v Freigang, 256 AD2d 539 [1998]). Where, as here,a party has paid the other party's share of what proves to be marital [*2]debt, such as the mortgage, taxes, and insurance on the maritalresidence, reimbursement is required (see generally Epstein v Messner, 73 AD3d 843 [2010]). However,the plaintiff was entitled to only a 50% of the reduction in mortgage principal because"[g]enerally it is the responsibility of both parties to maintain the marital residence. . . during the pendency of a matrimonial action" (Judge v Judge, 48 AD3d 424,425-426 [2008] [internal quotation marks and citations omitted]; see Palumbo v Palumbo, 10 AD3d680 [2004]). Therefore, the Supreme Court improvidently exercised its discretion inawarding the plaintiff a credit for 100% of the payments she made on the marital residenceduring the divorce proceedings.
The remaining contentions are without merit. Covello, J.P., Lott, Roman and Miller, JJ.,concur.