| Dinoto v Dinoto |
| 2012 NY Slip Op 05386 [97 AD3d 529] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Olga Dinoto, Appellant, v Spero Dinoto,Respondent. |
—[*1] Dikman & Dikman, Lake Success, N.Y. (David S. Dikman of counsel),for respondent.
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, Queens County (Gartenstein, J.H.O.), enteredMarch 11, 2011, as, upon a decision of the same court dated December 9, 2010, made after anonjury trial, adjudged that the appreciation in the value of the former marital residence was thedefendant's separate property, failed to direct that her name be placed on the deed for, and granther equal use of, the parties' condominium unit in Fort Lauderdale, Florida, awarded her onlyone-third of the net proceeds from any sale of marital real property located in Whitestone,Queens, and failed to award her an attorney's fee.
Ordered that the judgment is modified, on the law, by adding a provision to the third decretalparagraph thereof directing that the plaintiff's name be placed on the deed of the parties'condominium unit in Fort Lauderdale, Florida, as a tenant in common with the defendant; as somodified, the judgment is affirmed insofar as appealed from, with costs to the defendant.
"[W]here the determination as to equitable distribution has been made after a nonjury trial,the trial court's assessment of the credibility of witnesses is afforded great weight on appeal" (Aloi v Simoni, 82 AD3d 683, 685[2011]; see Lurie v Lurie, 94 AD3d1376 [2012]). Here, the trial court providently exercised its discretion in drawingunfavorable inferences from the plaintiff's testimony. In particular, the court correctly determinedthat the plaintiff's testimony was substantially unworthy of belief.
The trial court also properly determined that the plaintiff was not entitled to share in theappreciation in value of the former marital residence, which was the defendant's separateproperty. "Appreciation in the value of separate property is considered separate property, 'exceptto the extent that such appreciation is due in part to the contributions or efforts of the otherspouse' " (Bernholc v Bornstein, 72AD3d 625, 628 [2010], quoting Johnson v Chapin, 12 NY3d 461, 466 [2009]; see DomesticRelations Law § 236 [B] [1] [d] [3]). Here, the plaintiff failed to demonstrate that shemade either direct financial or any nonfinancial contributions to this property such that theappreciated value was subject to equitable distribution.
Additionally, inasmuch as the court concluded that the plaintiff was responsible for [*2]causing damage to the former marital residence, the courtprovidently exercised its discretion by awarding her only one-third of the net proceeds from anysale of marital real property located in Whitestone, Queens, rather than one-half of the netproceeds from the sale. "While the distribution of marital property must be equitable, there is norequirement that the assets be split evenly" (Giokas v Giokas, 73 AD3d 688, 689 [2010]).
The trial court properly determined that a condominium unit located in Fort Lauderdale,Florida, was marital property, and that the parties were to share equally in either the financial lossor gain realized upon the sale or transfer of the property. Accordingly, the judgment is modifiedto direct that the plaintiff's name be placed on the deed to that property as a tenant in commonwith the defendant.
The plaintiff's claim that the court should have awarded her an attorney's fee is without merit,"since she never made a formal application for such an award, and submitted no supportingdocumentation regarding the legal services rendered" (Poli v Poli, 286 AD2d 720,723-724 [2001]; see Nichols vNichols, 19 AD3d 775, 779-780 [2005]; Cynoske v Cynoske, 8 AD3d 720, 724 [2004]; Beece vBeece, 289 AD2d 352, 353 [2001]).
The plaintiff's remaining contentions are without merit. Mastro, A.P.J., Angiolillo, Austinand Sgroi, JJ., concur.