| Marcellus-Montrose v Montrose |
| 2011 NY Slip Op 03814 [84 AD3d 752] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Viviane Marcellus-Montrose, Respondent, v Jean MarcMontrose, Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), enteredFebruary 25, 2009, which, inter alia, after a nonjury trial, determined that 50% of the maritalresidence was marital property, and awarded him 20% of the net equity in the marital residence,and 20% of a cash payment received by the plaintiff upon refinancing the marital residence.
Ordered that the judgment is modified, on the law and the facts, by deleting therefrom somuch of the eighth decretal paragraph as determined that "only 50% of the marital residence isconsidered to be marital property" and "Defendant is entitled to a [sic] 20% of thePlaintiff's share of the value of the 50% interest in the marital residence," and substitutingtherefor a provision determining that 100% of the marital residence is marital property, andawarding the defendant 20% of the net equity in the marital residence; as so modified, thejudgment is affirmed insofar as appealed from, without costs or disbursements.
Domestic Relations Law § 236 (B) (1) (c) defines marital property as "all propertyacquired by either or both spouses during the marriage and before the . . .commencement of a matrimonial action, regardless of the form in which title is held." Themarital residence, which was purchased during the parties' marriage, initially was held in thename of the plaintiff and her brother. In February 2005 the plaintiff and her brother transferredtitle to the plaintiff, and title was solely in her name at the time of the commencement of thisaction in July 2005. Since the marital residence was acquired by the plaintiff during the marriage,the presumption was that it was entirely marital property (see Fields v Fields, 15 NY3d 158, 163 [2010]; DeJesus vDeJesus, 90 NY2d 643, 652 [1997]).
The evidence adduced at the trial indicated that the plaintiff's brother's name was placed onthe deed and mortgage of the marital residence, in lieu of the defendant's name, because thedefendant did not have a Social Security number. The plaintiff's brother's contributions to themarital residence were, at best, sporadic, and could not be documented. Therefore, the plaintifffailed to overcome the presumption that the marital residence was entirely marital property.
Accordingly, the Supreme Court's determinations that "only 50% of the marital residence isconsidered to be marital property" and "Defendant is entitled to a [sic] 20% of thePlaintiff's share of the value of the 50% interest in the marital residence" are erroneous, and mustbe modified to provide that [*2]100% of the marital residence ismarital property.
However, the Supreme Court awarded the defendant 20% of $120,000, the net equity in themarital residence, and 20% of $66,676, the sum of a cash payment received by the plaintiff whenshe refinanced the marital residence in February 2005, prior to the commencement of the action.The total distributive award of $37,375.20 comprised 20% of the marital property of the parties.As the defendant acknowledges in his brief, the erroneous finding that only 50% of the maritalresidence constituted marital property did not affect the ultimate award to him.
The limitation of the distributive award to 20% of marital property was based upon theSupreme Court's finding that the defendant's income "was not as significant compared to themonetary contributions of plaintiff." The defendant's annual income was about 20% of the annualincome of the plaintiff.
The defendant claims his nonmonetary contributions to the marriage justify a higher award.He claimed that he cared for the children while the plaintiff was at work. However, thistestimony was discredited when, during cross-examination, he acknowledged that a live-inbabysitter cared for the children. Further, the plaintiff contributed monetarily to the furtheranceof the defendant's music career. Equitable distribution does not mean equal distribution, and,under the circumstances of this case, the award to the defendant of 20% of the marital propertywas proper (see Shapiro v Shapiro,35 AD3d 585, 587 [2006]).
The defendant's remaining contentions are without merit. Mastro, J.P., Rivera, Austin andRoman, JJ., concur.