| Nidositko v Nidositko |
| 2012 NY Slip Op 00943 [92 AD3d 653] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Kelli J. Nidositko, Respondent-Appellant, v Nicholas W.Nidositko, Appellant-Respondent. |
—[*1] Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (Justin E. Kimple of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Orange County (McGuirk, J.), dated January27, 2010, as, upon a decision of the same court dated April 1, 2008, made after a nonjury trial,determining that the sum of only $15,000 was his equitable share of the marital residence anddeeming that amount satisfied after the application of credits to the parties for their payment oftheir respective debts from marital assets, (a) failed to award him any amount for his equitableshare of the marital residence, (b) awarded him the sum of only $18,850 as his share of theplaintiff's enhanced earnings due to her attainment of a nursing degree and professional license,and (c) awarded the plaintiff a credit for any judgments against the defendant in his name alonewhich were or may become liens against the marital residence, and the plaintiff cross-appealsfrom the same judgment.
Ordered that the cross appeal is dismissed as abandoned, without costs or disbursements(see 22 NYCRR 670.8 [e]); and it is further,
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by adding thereto a provision awarding the defendant the sum of $5,000 as thebalance due him for his equitable share of the marital residence after the application of credits tothe plaintiff and to the defendant for the payment of their respective separate debts from maritalassets; as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements.
In January 1998, the plaintiff purchased a home in Maybrook for the sum of $83,000,executing a mortgage in the amount of $62,250, and paying the remainder with a gift from familymembers. The plaintiff and the defendant married on August 18, 2001. On December 20, 2002,the plaintiff conveyed the home to the defendant and herself. As part of the transaction, the homewas refinanced, and the parties obtained a new mortgage loan in the principal amount of$110,000. Proceeds from the new loan paid the existing mortgage, plus $30,000 of thedefendant's separate indebtedness and $20,000 of the plaintiff's separate indebtedness.[*2]
During the marriage, the plaintiff attended college fromthe fall of 2002 to the spring of 2004, when she received an associate degree in nursing. Theplaintiff obtained her license as a registered nurse in August 2004. In July 2006, the plaintiffcommenced this action for a divorce and ancillary relief. Following a nonjury trial, the SupremeCourt issued a decision determining the defendant's equitable share of, inter alia, the value of themarital residence and the value of the plaintiff's enhanced earnings due to her attainment of acollege degree and professional license during the marriage. The court held that the defendanthad already received the value of his equitable share of the marital residence in the sum of$15,000 when his separate bills were paid during the refinancing. A judgment was entered uponthat decision, directing the defendant to transfer his interest in the marital residence to theplaintiff, and awarding the defendant the sum of $18,850 as his equitable share of the plaintiff'senhanced earnings. The court further awarded the plaintiff a credit for any judgments against thedefendant in his name alone, which are presently or may become liens against the maritalresidence.
The defendant appeals from the judgment, and contends that the Supreme Court erred in itsmethod of valuing the marital residence, its award of only $15,000 as his equitable share of thatvalue, and its determination that the $15,000 had already, in effect, been paid to him when hisseparate debts were paid from proceeds of the new mortgage loan. He further contends that thecourt erred in determining that his equitable share of the plaintiff's enhanced earnings was only5%, or $18,850, and that the court erroneously allowed the plaintiff a credit against that sum forany judgments against the defendant, in his name alone, which are or may become liens againstthe marital residence. We modify.
"Equitable distribution presents issues of fact to be resolved by the trial court and should notbe disturbed on appeal unless shown to be an improvident exercise of discretion" (Loria v Loria, 46 AD3d 768,769-770 [2007]). "Equitable distribution does not necessarily mean equal distribution," andrequires the court's consideration of all relevant statutory factors (Faello v Faello, 43 AD3d 1102,1103 [2007]; see Domestic Relations Law § 236 [B] [5] [d]).
Here, on the record presented, the Supreme Court providently determined that the defendant'sequitable share of the marital residence was $15,000, or approximately 31.6% of the portion ofthe property's value subject to equitable distribution. Further, contrary to the defendant'scontention, the Supreme Court properly calculated the value of the marital property subject toequitable distribution. The plaintiff's conveyance of the home to the defendant and herselfpresumptively changed the character of the home from separate property to marital property (see D'Elia v D'Elia, 14 AD3d 477,478 [2005]; Diaco v Diaco, 278 AD2d 358, 359 [2000]). In determining the value of theportion of this asset subject to equitable distribution, the Supreme Court correctly considered theappreciation in value of the home during the marriage after it was converted to marital property(see Cleary v Cleary, 171 AD2d 1076, 1077 [1991]; Monks v Monks, 134 AD2d334, 336 [1987]; Coffey v Coffey, 119 AD2d 620, 622-623 [1986]; see also Massimi v Massimi, 35 AD3d400, 402 [2006]).
While the Supreme Court properly awarded the defendant the sum of $15,000 as hisequitable share of the marital residence, the court did not correctly compute the relative credits ofthe parties which affect that award. The new mortgage obtained from the refinancing was amarital debt (see Loria v Loria, 46 AD3d at 770), and thus, the parties used $50,000 inmarital funds to pay their separate debts. Where marital funds are used to pay the separateliabilities of one of the parties, the other party may be entitled to a credit (see Bernholc v Bornstein, 72 AD3d625, 628 [2010]; Lewis vLewis, 6 AD3d 837, 839 [2004]). Here, the plaintiff's credit is the sum of $30,000 forpayment of the defendant's separate debts, and the defendant's credit is the sum of $20,000 forthe payment of the plaintiff's separate debts, resulting in a net credit to the plaintiff of $10,000.Applying the $10,000 credit against the defendant's $15,000 equitable share of the maritalresidence yields a net balance of $5,000 due to the defendant. Thus, we modify the judgmentaccordingly.
Further, contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in awarding him only $18,850, which was 5% of the value of the plaintiff's enhancedearnings resulting from her degree and professional license obtained during the marriage (see Schwartz v Schwartz, 67 AD3d989, 991 [2009]; Farrell v Cleary-Farrell, 306 AD2d 597, 600 [2003]).[*3]
Finally, the Supreme Court properly awarded the plaintiffa credit for any judgments against the defendant in his name alone which were or may becomeliens against the home, since the evidence did not establish that these judgments, resulting fromthe defendant's credit card debt constituted marital debt that should be shared by the parties(cf. Bernholc v Bornstein, 72 AD3d at 628). Dillon, J.P., Angiolillo, Florio andDickerson, JJ., concur.