| Marshall v Marshall |
| 2012 NY Slip Op 00191 [91 AD3d 610] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Michael Marshall, Respondent, v Ruth Marshall,Appellant. |
—[*1] Naimark & Tannenbaum, Jamaica, N.Y. (Eliot Tannenbaum of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant former wife appeals, as limitedby her brief and the parties' stipulation dated August 11, 2011, from stated portions of a judgmentof the Supreme Court, Kings County (Henderson, Ct. Atty. Ref.), entered October 1, 2008,which, upon a decision of the same court dated February 8, 2007, made after a nonjury trial onthe issue of equitable distribution, and an order of the same court (Harkavy, J.H.O.), datedAugust 20, 2008, inter alia, in effect, declared that two certain Chase Manhattan Bank accountsheld by the plaintiff former husband in trust for his mother were not marital assets subject todistribution.
Ordered that the judgment is modified, on the law and the facts, by deleting the provisionthereof, in effect, declaring that two Chase Manhattan Bank accounts, with account numbersending in 39-01 and 18-01, respectively, and held by the plaintiff former husband in trust for hismother, were not marital assets subject to distribution, and substituting therefor a provisiondeclaring that those bank accounts are marital assets and that each party shall receive 50% of thefunds held in those accounts; as so modified, the judgment is affirmed insofar as appealed from,without costs or disbursements.
The plaintiff former husband commenced the instant action for a divorce and ancillary reliefin July 2005, and the defendant former wife answered and counterclaimed. A trial was heldbefore a Supreme Court Justice on the issue of divorce only. Upon the parties' stipulation, theSupreme Court referred the issue of equitable distribution to a Referee to hear and determine. Atthe hearing on the issue of equitable distribution, the plaintiff testified, among other things, thathe held a certain Chase Manhattan Bank (hereinafter Chase) account, with an account numberending in 39-01 (hereinafter the 39-01 account), in trust for his mother, Anita Marshall. Thedocumentary evidence established that there was another Chase account, with an account numberending in 18-01 (hereinafter the 18-01 account), which the plaintiff also held in trust for AnitaMarshall. The defendant testified that this account had originally been an account held jointly bythe parties.
Thereafter, the Referee issued a determination on the issue of equitable distribution,concluding, among other things, that the 39-01 account was not marital property subject to [*2]distribution. Although the Referee made no specific determinationas to the 18-01 account, she, in effect, concluded that all of the Chase accounts held by theplaintiff in trust for his mother were not marital property subject to distribution.
Subsequently, the defendant moved for posttrial relief, including an award of spousalmaintenance, an award of 50% of the value of a certain HSBC Bank account, and an award of anattorney's fee. The Supreme Court denied the motion, except that it directed that a hearing beheld on the issue of whether the HSBC Bank account was a marital asset, or whether it was theplaintiff's account, held for the benefit of his mother.
At a hearing held before a Judicial Hearing Officer (hereinafter JHO), the plaintiff's mothertestified that the HSBC Bank account was the only bank account that the plaintiff held in trust forher. After the hearing, the JHO, in an order dated August 20, 2008, determined that the HSBCBank account was not a marital asset subject to distribution. Subsequently, the Referee issued ajudgment distributing the marital assets in accordance with both her determination and the orderdated August 20, 2008.
Domestic Relations Law § 236 (B) (1) (c) defines marital property as "all propertyacquired by either or both spouses during the marriage and before the execution of a separationagreement or the commencement of a matrimonial action, regardless of the form in which title isheld," except as otherwise provided in a written agreement between the parties made before orduring the marriage (see Domestic Relations Law § 236 [B] [3]). "Marital propertyis to be viewed broadly, while separate property is to be viewed narrowly" (Steinberg v Steinberg, 59 AD3d702, 704 [2009]). "Property acquired during the marriage is presumed to be marital propertyand the party seeking to overcome such presumption has the burden of proving that the propertyin dispute is separate property" (Emburyv Embury, 49 AD3d 802, 804 [2008] [internal quotation marks omitted]; see D'Angelo v D'Angelo, 14 AD3d476, 477 [2005]). A court is not bound by a party's own account of his or her finances(see Steinberg v Steinberg, 59 AD3d at 704, citing Saasto v Saasto, 211 AD2d708, 709 [1995]). When an asset is acquired during the marriage, the party's own testimony thatthe source of the funds used to acquire it are premarital or separate property, without more, isinsufficient to overcome the presumption that the property is marital property (see Steinberg vSteinberg, 59 AD3d at 704; D'Angelo v D'Angelo, 14 AD3d at 477; Farag v Farag, 4 AD3d 502, 503[2004]).
Here, the plaintiff testified that the 39-01 account had been opened 10 years prior to the trial.Inasmuch as the parties were married in 1982, that account was presumed to be marital property,and the plaintiff bore the burden of overcoming that presumption (see Embury v Embury,49 AD3d at 804), but failed to do so. Although the plaintiff testified that he opened the 39-01account for the benefit of his mother, his testimony was contradicted by evidence that the accounthad been changed in 2000, from an account held by the plaintiff in trust for the defendant, to oneheld by the plaintiff in trust for his mother. The plaintiff failed to adduce any evidence that thefunds deposited to open the account belonged to his mother.
Next, the defendant testified at the hearing that the 18-01 account was originally an accountheld jointly by the parties. The plaintiff did not dispute this contention, and bank statementsshowed that the account had also been changed, in 2000, from an account held in trust for thedefendant, to one held in trust for the plaintiff's mother. The plaintiff offered no evidence as tothe source of the funds deposited into this account. Accordingly, he failed to overcome thepresumption of marital property with respect to this account as well (id.).
However, contrary to the defendant's contention, the JHO properly determined that the HSBCBank account in dispute was not marital property, but was, rather, an account funded solely bythe plaintiff's mother, and held by the plaintiff for her benefit. The plaintiff sustained his burdenof proof on this issue by submitting the testimony of his 92-year old mother that she earned themoney, which was her life savings, and asked him to deposit it into an account for her benefit.Thus, we decline to disturb the JHO's determination in connection with the HSBC Bank account(see Foppiano v Foppiano, 166 AD2d 550, 551 [1990]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Lott, Austin andCohen, JJ., concur.