| Swett v Swett |
| 2011 NY Slip Op 08442 [89 AD3d 1560] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| Allen J. Swett, Respondent, v Sheryl A. Swett,Appellant. |
—[*1] Welch & Zink, Corning (Colleen G. Zink of counsel), for plaintiff-respondent.
Appeal from a second amended decree of the Supreme Court, Steuben County (Alex R. Renzi,J.), entered May 6, 2010 in a divorce action. The second amended decree, among other things,determined the equitable distribution of the marital property.
It is hereby ordered that the second amended decree so appealed from is unanimously modified onthe law by directing in the third decretal paragraph concerning the marital residence that defendant isentitled to a credit of $13,613 before the remaining value of the marital residence is subject to equitabledistribution, such that within 30 days of the date of this order defendant shall pay to plaintiff the sum of$13,343.50, representing his equity in the marital residence, in exchange for plaintiff's execution of aquitclaim deed relinquishing the marital residence to defendant, and as modified the second amendeddecree is affirmed without costs.
Memorandum: Defendant appeals from a second amended decree of divorce that, inter alia,equitably distributed the parties' marital property. Defendant contends that Supreme Court erred inawarding plaintiff a credit for his nonfinancial contributions to the appreciated value of a cottage thatwas purchased by defendant and her family prior to the marriage. Although defendant presentedevidence that she sold her interest in the cottage to her father shortly after the marriage, plaintiffpresented evidence that the deed was never modified and that the parties continued to use the cottagein a manner consistent with the use of property owners. "It is well established that '[e]quitabledistribution presents issues of fact to be resolved by the trial court, and its judgment should be upheldabsent an abuse of discretion' " (Prasinos v Prasinos, 283 AD2d 913, 913 [2001]). In light ofthe conflicting evidence presented by the parties at trial, the court did not abuse its discretion inconcluding that defendant in fact maintained a property interest in the cottage after the marriage and thatplaintiff was entitled to a credit for his nonfinancial contributions to the appreciated value thereof(see generally Domestic Relations Law § 236 [B] [1] [d] [3]; Hartog v Hartog,85 NY2d 36, 46 [1995]).
We reject defendant's further contention that the court erred in concluding that certain trustaccounts and stock obtained by her during the marriage were marital property subject to equitabledistribution (see generally Domestic Relations Law § 236 [B] [1] [c]). "'Property acquired during the marriage is presumed to be marital property and the party seeking to[*2]overcome such presumption has the burden of proving that theproperty in dispute was separate property' " (Galachiuk v Galachiuk, 262 AD2d 1026, 1027[1999]; see Fields v Fields, 15 NY3d158, 162-163 [2010], rearg denied 15 NY3d 819 [2010]). Here, defendant " 'failed totrace the source of the funds [and stock that she contended were separate property] with sufficientparticularity to rebut the presumption that they were marital property' " (Bailey v Bailey, 48 AD3d 1123, 1124[2008]; see Bennett v Bennett, 13 AD3d1080, 1082 [2004], lv denied 6 NY3d 708 [2006]). Contrary to defendant's contention,the court did not abuse its discretion in awarding counsel fees to plaintiff in light of the "dilatory orobstructionist conduct" by defendant (Blake v Blake [appeal No. 1], 83 AD3d 1509 [2011];see Johnson v Chapin, 12 NY3d461, 467 [2009], rearg denied 13 NY3d 888 [2009]; see also McBride-Head v Head, 23 AD3d1010, 1011 [2005]).
We agree with defendant, however, that the court erred in failing to award her a credit for payingoff the mortgage on the marital residence with her separate property. "It is well settled that a spouse isentitled to a credit for his or her contribution of separate property toward the purchase of the maritalresidence" (Juhasz v Juhasz, 59 AD3d1023, 1024 [2009], lv dismissed 12 NY3d 848 [2009]; see Fields, 15 NY3d at166). Here, it is uncontested that the money used to pay off the mortgage on the marital residenceshortly after the parties' marriage was defendant's separate property, and thus defendant is entitled to acredit in that amount prior to the equitable distribution of the marital residence (see Fields, 15NY3d at 166; Juhasz, 59 AD3d at 1024; Mirand v Mirand, 53 AD3d 1149, 1150 [2008]; Chernoff v Chernoff, 31 AD3d 900,903 [2006]). We therefore modify the second amended decree accordingly. Present—Centra,J.P., Fahey, Peradotto, Lindley and Martoche, JJ.