| Lurie v Lurie |
| 2012 NY Slip Op 03253 [94 AD3d 1376] |
| April 26, 2012 |
| Appellate Division, Third Department |
| Michael Lurie, Respondent-Appellant, v Holly Lurie,Appellant-Respondent. |
—[*1] Michael Lurie, Vestal, respondent-appellant pro se.
Stein, J. Cross appeals from a judgment of the Supreme Court (Lebous, J.), entered February4, 2011 in Broome County, ordering, among other things, equitable distribution of the parties'marital property, upon a decision of the court.
In this action for divorce, defendant challenges Supreme Court's division of the equity in theparties' marital residence. The residence was purchased in July 1998, approximately one monthafter the parties were married. In order to pay for the purchase price of $130,000, plaintiffliquidated an individual retirement account that he acquired prior to the marriage and secured apersonal loan from his mother. At the closing, defendant discovered that the deed to the propertywas issued to plaintiff alone, and insisted that she be added as a grantee. Shortly after the closing,another deed from the sellers was recorded, which named both plaintiff and defendant asgrantees.[FN1]In November 2000, plaintiff's mother forgave the balance then existing on the [*2]mortgage. Thereafter, plaintiff executed a quitclaim deed in August2003, which transferred the property from his name, alone, to both him and defendant as tenantsby the entirety.
Plaintiff commenced this action for divorce in July 2008. After a nonjury trial was held onthe issue of equitable distribution, Supreme Court ordered, among other things, that plaintiff wasentitled to a credit in the distribution of the equity in the marital residence for the amounts hecontributed to the closing costs and down payment for its purchase, as well as the amount of themortgage loan balance forgiven by his mother. Defendant now appeals, and plaintiffcross-appeals.[FN2]
The parties do not dispute that the marital residence constitutes marital property subject toequitable distribution (see Domestic Relations Law § 236 [B] [1] [c]) or thatplaintiff's contributions to its acquisition—including the mortgage loanforgiveness—constituted his separate property (see Domestic Relations Law§ 236 [B] [1] [d] [1]). However, defendant contends that Supreme Court improperlycredited plaintiff for such contributions in the distribution of the residence and should havedivided the equity in that asset equally between the parties. We disagree.
Specifically, defendant contends that Supreme Court failed to consider the implications ofcertain financial circumstances and of various transactions that occurred with respect to theparties' properties during the marriage which, she argues, resulted in the transmutation ofplaintiff's separate property interest in the marital residence into marital property. For example,defendant emphasizes that she was the primary wage-earner during the marriage, paid themajority of the marital expenses—including the expenses related to the maritalresidence—and negotiated a reduction in mortgage payments. In addition, she notes thatthe marital residence was debt free by December 2000, but was encumbered by a mortgage in theamount of approximately $44,000 at the time of trial as a result of various otherinvestments—including a failed business on plaintiff's part—which were financedby loans secured by the marital residence. Defendant also argues that the 2003 quitclaim deedwas intended by plaintiff to convert to marital property any separate property claim that he mayhave had to the equity in the marital residence. Plaintiff gave varying explanations for this deed.After hearing the testimony, Supreme Court apparently discredited defendant's interpretation asto its significance.
It is well established that equitable distribution of marital property does not necessarily meanequal, and Supreme Court has substantial discretion in fashioning an award of equitabledistribution (see Quinn v Quinn, 61AD3d 1067, 1069 [2009]). "Absent an abuse of [that] discretion, [we] may not disturb thetrial court's distributive award" (Fields v Fields, 15 NY3d [*3]158, 170 [2010] [citation omitted]). Moreover, given SupremeCourt's superior opportunity to assess the credibility of the witnesses, we defer to itsdeterminations (see Stahl v Stahl,80 AD3d 932, 933 [2011]). Although the trial court is required to consider the factors setforth in Domestic Relations Law § 236 (B) (5) (d) in fashioning its equitable distributionaward, "[t]he fact that the court did not cite every factor and address each self-serving claim ofthe parties is not dispositive" (Butler v Butler, 256 AD2d 1041, 1042 [1998], lvdenied 93 NY2d 805 [1999]; seeNoble v Noble, 78 AD3d 1386, 1387 [2010]).
Here, it is clear that Supreme Court considered the parties' respective financial contributionsto the acquisition of their marital property in general, and to the marital residence in particular.Moreover, the record evidence supports Supreme Court's conclusion that plaintiff contributedseparate funds toward the acquisition of the marital residence and did not relinquish or forgo hisclaim to such separate contribution (see Fields v Fields, 15 NY3d at 167-168; Cassara v Cassara, 1 AD3d 817,819 [2003]; Myers v Myers, 255 AD2d 711, 716 [1998]). Thus, we discern no abuse ofSupreme Court's discretion in its determination to credit plaintiff for his separate propertycontributions to the marital residence in equitably distributing that asset (see Cassara vCassara, 1 AD3d at 819; Maczek v Maczek, 248 AD2d 835, 836-837 [1998]).
Mercure, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: We note that the record containsno indication as to whether the deed conveyed at the closing was voided or if the property wasotherwise deeded back to the grantors before this deed was executed. If not, the grantors wereincapable of transferring the property again, as plaintiff was the only valid title holder(see Real Property Law § 245; Robbins v Whitesell, 128 AD2d 764, 764[1987]). Nevertheless, the validity of the second deed is immaterial here.
Footnote 2: Inasmuch as plaintiff's appellatebrief does not address any of the issues raised in his notice of cross appeal, plaintiff hasabandoned his appeal of those issues (see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85AD3d 1464, 1465 n [2011]).