| Biagiotti v Biagiotti |
| 2012 NY Slip Op 05583 [97 AD3d 941] |
| July 12, 2012 |
| Appellate Division, Third Department |
| Belinda Biagiotti, Appellant-Respondent, v Peter Biagiotti,Respondent-Appellant. |
—[*1] Rhoades, Cunningham & McFadden, PLLC, Latham (Daniel D. Cunningham of counsel), forrespondent-appellant.
McCarthy, J. Cross appeals from a judgment of the Supreme Court (Teresi, J.), enteredSeptember 27, 2011 in Albany County, ordering, among other things, equitable distribution ofthe parties' marital property and maintenance to plaintiff, upon a decision of the court.
The parties were married in September 2002. In June 2010, when plaintiff was 48 anddefendant was 54, plaintiff commenced this divorce action. In response to a request fortemporary relief, Supreme Court (Platkin, J.) granted plaintiff exclusive use and occupancy of themarital residence, instructed defendant to pay carrying costs on the residence, awarded plaintiff$250 per month in temporary maintenance and ordered the equal division of a Charles Schwabinvestment account held in defendant's name that was valued at around $20,000. Following anonjury trial, Supreme Court (Teresi, J.) granted plaintiff a divorce, equitably distributed theparties' property, and awarded plaintiff exclusive use of the marital residence until August 2012[*2]and maintenance of $250 per month for 15 months[FN1]and $125 per month for three years thereafter or until she remarries, whichever comes first.Disagreeing with aspects of the award of maintenance and property distribution, plaintiff appeals.Defendant cross-appeals.
Supreme Court did not err with respect to its award of maintenance to plaintiff. The amountand duration of spousal maintenance is a matter left to the sound discretion of the trial court, afterconsidering statutory factors and the parties' predivorce standard of living (see DomesticRelations Law § 236 [B] [6] [a]; Scarpace v Scarpace, 84 AD3d 1537, 1537 [2011]). The courtidentified 11 factors that it found particularly relevant here. This was not a marriage of longduration, the parties did not have any children in common, they are in relatively good health andemployed, and they enjoyed an upper middle class standard of living. Plaintiff has beenoccupying the marital residence—which is defendant's separate property—whiledefendant has been paying the carrying costs.[FN2]Although plaintiff earns significantly less than defendant, her salary is approximately $40,000and she receives child support for her child from a previous marriage. She is also attendingcollege and plans to become a certified public accountant in the near future, which will enhanceher earning potential. "[M]indful that the primary purpose of maintenance is to encourageself-sufficiency by the recipient," and noting that Supreme Court considered the relevantstatutory factors, we cannot say that the court abused its discretion in awarding plaintiffmaintenance of $250 per month for 15 months and then $125 per month for either three years oruntil she remarries (Quinn v Quinn,61 AD3d 1067, 1071 [2009]; seeMaggiore v Maggiore, 91 AD3d 1096, 1097 [2012]).
Supreme Court did not err in distributing the appreciation in value of the marital residence.The parties agree that the residence, which defendant owned prior to the marriage, is defendant'sseparate property (see Keil v Keil,85 AD3d 1233, 1235 [2011]). Appreciation in value of separate property can become maritalproperty if the appreciation is due to the contributions or efforts of the nontitled spouse (see Johnson v Chapin, 12 NY3d461, 466 [2009]). The parties stipulated that the residence increased in value by $105,500between the date of marriage and date of commencement of the divorce action, and that theyspent $185,000 to improve the home. The trial evidence showed that defendant was morepersonally involved in the renovations than plaintiff. The renovations were paid for with maritalfunds. According to an appraisal in the record, however, the improvements only accounted forapproximately $11,000 of the increase in value. Considering the parties' different levels ofinvolvement, and that most of the appreciation was passive based on market forces rather thanrelated to the improvements, the court did not err in granting plaintiff 15% of the amount of theproperty's appreciation (see id. at [*3]466-467; Keil vKeil, 85 AD3d at 1236).
Plaintiff was entitled to a credit for half of the marital funds used to reduce defendant'sseparate indebtedness. "If marital assets are used to reduce one party's separate indebtedness, theother spouse can recoup his or her equitable share of the expended marital funds" (Burtchaell v Burtchaell, 42 AD3d783, 786 [2007]; see Lewis vLewis, 6 AD3d 837, 839 [2004]; Micha v Micha, 213 AD2d 956, 957 [1995]).Defendant testified that he had a mortgage and a home equity line of credit as liens against hishome prior to the marriage. In 2003, shortly after the marriage, he refinanced the mortgage andpaid off the existing line of credit by rolling it into the new mortgage. The parties each testifiedthat the mortgage payments were made from a checking account where both parties depositedtheir paychecks. The amount of the refinanced mortgage was reduced by $24,028 during themarriage. As these payments from marital funds reduced defendant's indebtedness on his separateproperty, plaintiff is entitled to recoup $12,014, or half of the marital funds applied to thisseparate debt (see Micha v Micha, 213 AD2d at 957-958).
Supreme Court properly divided the debt from the home equity line of credit. Afterrefinancing the mortgage, defendant took out a new line of credit. Both parties testified that itwas repeatedly borrowed against and paid down during the marriage from marital funds.Defendant testified that they borrowed to pay for home maintenance and repairs, vehicles,furniture and other living expenses. As this evidence established that the line of credit was usedfor marital expenses and plaintiff's evidence did not refute this, the court did not abuse itsdiscretion by equally dividing the debt between the parties (see Evans v Evans, 55 AD3d 1079, 1081 [2008]).
We modify Supreme Court's distribution of the parties' retirement accounts. The court reliedupon the same factors for analyzing defendant's retirement plan as for plaintiff's retirement planand IRA, yet awarded plaintiff 10% of defendant's account while giving defendant 20% ofplaintiff's accounts. Based on the parties' disparate incomes, and the court's lack of anyexplanation for the discrepancy in the percentages awarded for these similar assets, we modify byawarding each party 10% of the other's retirement plans. Hence, plaintiff is entitled toreimbursement from defendant of $880.63 from her retirement account and $2,420.30 from herIRA.
The record does not include any value for defendant's three IRAs for any time periodbetween the date of commencement of the action and the date of trial. As Supreme Court mustuse a valuation date within that time frame (see Domestic Relations Law § 236 [B][4] [b]; Mesholam v Mesholam, 11NY3d 24, 28 [2008]), the court could not assign a value to these assets. The burden ofproving the value of a pension rests on the party seeking an equitable share of that pension(see Parrish v Parrish, 213 AD2d 928, 928 [1995]; Grenier v Grenier, 210 AD2d557, 558 [1994]). Because plaintiff did not meet her burden, the court did not err in declining todistribute any portion of defendant's IRAs to plaintiff.
Supreme Court erred by ordering defendant to reimburse plaintiff for all withdrawals fromhis Charles Schwab account made in the six months prior to commencement of this action. Acourt may consider transfers made in contemplation of a matrimonial action as one of the factorsin equitably distributing marital property (see Domestic Relations Law § 236 [B][5] [d] [13]). In the months prior to commencement, and after defendant had informed plaintiff ofhis desire to end the marriage, defendant withdrew over $17,000 from the subject account. The[*4]account was marital property, so the court did not err indetermining that plaintiff was entitled to credit for some of the amounts that defendant hadwithdrawn from that account. On the other hand, plaintiff already received the benefit of theamounts that defendant used to make a payment toward the loan on plaintiff's vehicle and for autility bill at the marital residence where she was living. These were not improper transfers madein contemplation of the divorce but, instead, were ordinary living expenses that inured toplaintiff's benefit. Thus, the court erred in requiring defendant to repay plaintiff $500,representing half of the vehicle payment, and $505.82, representing half of the utility bill (seeMatwijczuk v Matwijczuk, 290 AD2d 854, 856 [2002]).
The parties' remaining contentions have been reviewed and do not warrant furthermodification of Supreme Court's judgment.
Mercure, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by (1) granting plaintiff a credit of $12,014 forthe payments of marital funds used to reduce the mortgage on defendant's separate property, (2)awarding defendant 10% of plaintiff's retirement plan and IRA rather than 20%, amounting to areimbursement to plaintiff of $880.63 from her retirement account and $2,420.30 from her IRA,and (3) reimbursing defendant $1,005.82 of repayments he made to plaintiff for withdrawalsfrom his Charles Schwab account, and, as so modified, affirmed.
Footnote 1: The judgment contradictorilystates that $250 should be paid for 12 months and 15 months. Defendant appears to concede thatSupreme Court intended that amount to be paid for 15 months.
Footnote 2: Defendant argues that SupremeCourt erred in granting plaintiff exclusive occupancy of his separate property followingjudgment, but he acknowledges that the argument is largely academic given the timing of thisappeal and the expiration of the period of occupancy in August 2012. Thus, he asks us toconsider this situation, namely his payments towards plaintiff's living expenses, in the context ofdetermining the appropriateness of the ordered maintenance.