| Davidman v Davidman |
| 2012 NY Slip Op 05493 [97 AD3d 627] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Barbara L. Davidman, Respondent, v Jeffrey H. Davidman,Appellant. |
—[*1] Thomas K. Campagna, P.C., Hauppauge, N.Y. (Christopher J. Chimeri of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, (1) from a decision ofthe Supreme Court, Suffolk County (Blydenburgh, J.), dated September 3, 2010, made after anonjury trial, and (2), as limited by his brief, from stated portions of a judgment of the same courtentered November 16, 2011, which, upon the decision (a) awarded the plaintiff a 50% share inthe appreciation of the marital residence, (b) directed the parties to sell the marital residence atthe conclusion of the plaintiff's period of exclusive occupancy, (c) directed the defendant to paythe sum of $352.27 per week in child support, and (d) fixed the commencement date of thisaction as the valuation date for equitable distribution of the parties' assets.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofawarding the plaintiff a 50% share in the appreciation of the marital residence, (2) by deleting theprovision thereof directing the parties to sell the marital residence at the conclusion of theplaintiff's period of exclusive occupancy, and (3) by deleting the provision thereof directing thedefendant to pay the sum of $352.27 per week in child support; as so modified, the judgment isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Suffolk County, for further proceedings consistent herewith, and for entry ofan amended judgment thereafter; and it is further,
Ordered that pending a recalculation of the defendant's child support obligation, thedefendant shall continue to pay the sum of $352.27 per week for the support of the subject child.
The defendant acquired the marital residence prior to the parties' marriage, using theproceeds of a settlement from a personal injury action. The deed and mortgage were placed andkept solely in his name. Consequently, the marital residence is separate property (seeDomestic Relations Law § 236 [B] [1] [d] [1]; London v London, 21 AD3d 602, 603 [2005]; Burgio vBurgio, 278 AD2d 767, 768-769 [2000]). The appreciation of, or increase in the value of,separate property is considered separate property, "except to the extent that such appreciation isdue in part to the contributions or efforts of [*2]the other spouse"(Domestic Relations Law § 236 [B] [1] [d] [3]; see Tietjen v Tietjen, 48 AD3d 789, 790 [2008]). The plaintifffailed to carry her burden establishing that the marital residence appreciated in value during theparties' marriage and, if so, that such appreciation was due in part to her efforts (see Albanese v Albanese, 69 AD3d1005, 1006 [2010]; London v London, 21 AD3d at 603; Kurtz v Kurtz, 1 AD3d 214, 215[2003]; Burgio v Burgio, 278 AD2d at 769). Thus, it was error for the Supreme Court toaward the plaintiff a 50% share in the appreciation of the marital residence. Moreover, it waserror for the Supreme Court to direct that this separate property be sold (see London vLondon, 21 AD3d at 603). However, the plaintiff is entitled to a credit for her equitable shareof the marital funds that were used to pay off the mortgage, which was the defendant's separatedebt (see Alessi v Alessi, 289 AD2d 782, 783 [2001]; Burgio v Burgio, 278AD2d at 769). Accordingly, the matter is remitted to the Supreme Court, Suffolk County, for thecalculation of that credit.
Since the Supreme Court did not direct the plaintiff to pay the carrying charges for themarital residence, including the mortgage, during the pendency of her exclusive occupancy of it,the defendant became obligated to do so, while also paying child support. Moreover, theSupreme Court did not award the defendant a credit against his child support obligation for anyportion of the carrying charges he paid during the plaintiff's exclusive occupancy of the maritalresidence. As a result, the defendant is making double shelter payments (see Mosso v Mosso, 84 AD3d757, 759 [2011]; Cohen v Cohen, 286 AD2d 698 [2001]; Lenigan v Lenigan,159 AD2d 108, 112 [1990]). Therefore, the matter must be remitted to the Supreme Court,Suffolk County, for a recalculation of the defendant's child support obligation, with the defendantreceiving a credit for any double shelter payments he previously made (see Mosso vMosso, 84 AD3d at 759).
The defendant's remaining contention is without merit (see Mesholam v Mesholam, 11 NY3d 24, 29 [2008]). Florio, J.P.,Balkin, Chambers and Cohen, JJ., concur.