| Jones v Jones |
| 2012 NY Slip Op 01436 [92 AD3d 845] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Susan F. Jones, Appellant-Respondent, v Nicholas A.Jones, Respondent-Appellant. |
—[*1] Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (William J. Larkin III ofcounsel), for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Orange County (McGuirk, J.), entered July 1,2010, as, upon a decision of the same court dated March 31, 2010, made after a nonjury trial,adjudged that the former marital residence was the defendant's separate property, awarded her thesum of only $37,500 for her contribution to the appreciation in value of the former maritalresidence, awarded her maintenance in the sum of only $500 per week for a period of six yearscommencing on the first Friday following the plaintiff vacating the former marital residence, andawarded her an attorney's fee in the sum of only $5,000, and the defendant cross-appeals, aslimited by his brief, from so much of the same judgment as awarded the plaintiff maintenance inthe sum of $500 per week for a period of six years, and awarded the plaintiff an attorney's fee inthe sum of $5,000.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof awarding the plaintiff the sum of only $37,500for her contribution to the appreciation in value of the former marital residence, and substitutingtherefor a provision awarding her the sum of $290,000 for her contribution to the appreciation invalue of the former marital residence, (2) by deleting the provision thereof directing thedefendant's maintenance obligation to commence on the first Friday following the plaintiffvacating the former marital residence, and substituting therefor a provision directing that thedefendant's maintenance obligation shall be effective as of November 13, 2008, and that thearrears due on that obligation shall be paid in monthly installments of $1,000, until paid in full,and (3) by deleting the provision thereof awarding the plaintiff an attorney's fee in the sum ofonly $5,000, and substituting therefor a provision awarding the plaintiff an attorney's fee in thesum of $20,000; as so modified, the judgment is affirmed insofar as appealed and cross-appealedfrom, without costs or disbursements, and the matter is remitted to the Supreme Court, OrangeCounty, for calculation of the amount of retroactive maintenance due, and the entry of anappropriate amended judgment thereafter.
Prior to the parties' marriage, the defendant purchased certain real property consisting ofapproximately 129 acres (hereinafter the former marital residence), which included a farmhouseand associated farm buildings. During the marriage, the parties erected a horse barn and createdpasture land for the purpose of establishing a horse farm on the property. The parties created ahorse boarding business called Misty Mountain Farm, which was primarily run by the plaintiff.[*2]
Contrary to the plaintiff's contention, the former maritalresidence was not transformed into marital property by her contributions to the property. Theformer marital residence is the defendant's separate property, as the defendant purchased it beforethe marriage with the proceeds he received from a personal injury settlement, and the evidence isinsufficient to demonstrate that it was transformed into marital property (see Tsigler v Kasymova, 73 AD3d1159 [2010]).
"Appreciation in the value of separate property is considered separate property, 'except to theextent that such appreciation is due in part to the contributions or efforts of the other spouse' "(Bernholc v Bornstein, 72 AD3d625, 628 [2010], quoting Johnson vChapin, 12 NY3d 461, 466 [2009]; see Domestic Relations Law § 236 [B][1] [d] [3]). "When the nontitled spouse makes direct financial contributions to the propertyand/or direct nonfinancial contributions to the property 'such as by personally maintaining,making improvements to, or renovating a marital residence,' or the appreciation is the result ofboth parties' efforts, appreciation due to those efforts constitutes marital property subject toequitable distribution" (Bernholc v Bornstein, 72 AD3d at 628, quoting Johnson vChapin, 12 NY3d at 466). The record establishes that the appreciation in the value of theformer marital residence was attributable to the joint efforts of the parties. Considering theplaintiff's contributions to the subject property, including, inter alia, her work on the horse farm,we find that the plaintiff should have been awarded 40% of the appreciation in value of theformer marital residence during the parties' marriage (see Mongelli v Mongelli, 68 AD3d 1070, 1072 [2009]; Kilkenny v Kilkenny, 54 AD3d816, 818-819 [2008]). We calculate that appreciation in value by subtracting the net value ofthe former marital residence (i.e., the fair market value less the outstanding principal balance ofthe mortgage loan) at the time of the commencement of the marriage from the net value of theformer marital residence at the time of the trial (see Kilkenny v Kilkenny, 54 AD3d at819).
The evidence at trial demonstrated that the former marital residence was worth the sum of$185,000 on the date of the parties' marriage. The defendant took out a mortgage loan in the sumof $35,000 in order to purchase the property, which was paid off during the parties' marriage. Theproperty was valued at $875,000 at the time of trial. Thus, the net value of the former maritalresidence at the time of trial, $875,000, less the net value of the former marital residence at thetime of the commencement of the marriage, $150,000, equals the sum of $725,000, whichrepresents the appreciation in value of the former marital residence during the parties' marriage.The wife's 40% share of that appreciation in value is the sum of $290,000.
" 'The amount and duration of maintenance is a matter committed to the sound discretion ofthe trial court, and every case must be determined on its own unique facts. The overridingpurpose of a maintenance award is to give the spouse economic independence, and it should beawarded for a duration that would provide the recipient with enough time to becomeself-supporting' " (id. at 820, quoting DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008] [internal quotationmarks omitted]). On the facts presented here, the Supreme Court's award of maintenance to theplaintiff in the sum of $500 per week for a period of six years was a provident exercise ofdiscretion (see Domestic Relations Law § 236 [B] [6] [a]; Mari v Mari, 19 AD3d 380[2005]).
However, the Supreme Court erred in determining that the maintenance obligation shouldcommence on the first Friday following the plaintiff vacating the former marital residence. Anaward of maintenance is effective as of the date of application therefor (see DomesticRelations Law § 236 [B] [6] [a]; Kilkenny v Kilkenny, 54 AD3d at 821). Thus, theSupreme Court should have directed that the defendant's maintenance obligation shall beeffective as of November 13, 2008, the date of the plaintiff's application for maintenance, andthat the arrears due on that obligation shall be paid in monthly installments of $1,000, until paidin full (see Domestic Relations Law § 236 [B] [6] [a]; Miceli v Miceli, 78 AD3d 1023,1026 [2010]). Accordingly, we must remit the matter to the Supreme Court, Orange County, forcalculation of the amount of retroactive maintenance due, and the entry of an appropriateamended judgment thereafter (see Miceli v Miceli, 78 AD3d at 1026).
" 'The decision to award . . . [an] attorney's fee lies, in the first instance, in thediscretion of the trial court and then in the Appellate Division whose discretionary authority is asbroad as [that of] the trial court' " (Crook v Crook, 85 AD3d 958, 959 [2011], quoting O'Brien vO'Brien, 66 NY2d 576, 590 [1985]). " '[I]n exercising its discretionary power to awardcounsel fees, a court should review the financial circumstances of both parties together with allthe other circumstances of the [*3]case, which may include therelative merit of the parties' positions' " (Crook v Crook, 85 AD3d at 959, quotingDeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Under the circumstances of thiscase, the Supreme Court improvidently exercised its discretion in awarding the plaintiff anattorney's fee in the sum of only $5,000. Considering, inter alia, the economic disparity betweenthe parties, we deem it appropriate to award the plaintiff an attorney's fee in the sum of $20,000(see Aloi v Simoni, 82 AD3d683, 687 [2011]). Skelos, J.P., Hall, Lott and Roman, JJ., concur.