| Formica v Formica |
| 2012 NY Slip Op 08485 [101 AD3d 805] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Vittoria Formica, Appellant, v Cesarino Formica,Respondent. |
—[*1] Victor F. Villacara, Patchogue, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Suffolk County (Kent III, J.), enteredAugust 16, 2011, which, upon, among other things, a decision of the same court dated August 12,2011, made after a nonjury trial, inter alia, (a) determined that the appreciation in the value of themarital residence constituted the defendant's separate property, (b) failed to equitably distributecertain personal property, the value of certain bank accounts, and the defendant's pension and thevalue of his IRA account, and (c) awarded the defendant an attorney's fee in the sum of $5,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"[I]n order for appreciation in the value of separate property to be deemed marital propertysubject to equitable distribution, the nontitled spouse must demonstrate the manner in which his[or her] contributions resulted in the increase in value and the amount of the increase which wasattributable to his [or her] efforts" (Embury v Embury, 49 AD3d 802, 804 [2008] [citations andinternal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18 [1986]; Imhof vImhof, 259 AD2d 666, 667 [1999]). Here, although the appellant does not take issue with theSupreme Court's determination that the marital residence is the separate property of thedefendant, she argues that she is entitled to a portion of the appreciation in its value over thecourse of the marriage. Contrary to the appellant's contention, she failed to sustain her burden ofdemonstrating the manner in which her contributions resulted in the increase in the value of themarital residence over the course of the marriage (see Embury v Embury, 49 AD3d at804; cf. Imhof v Imhof, 259 AD2d at 667). Accordingly, the Supreme Court properlydetermined that the appreciation in the value of the marital residence constituted the defendant'sseparate property.
With respect to certain personal property and bank accounts, and the defendant's pension andIRA account, the Supreme Court providently exercised its discretion in evaluating the credibilityof the witnesses in making its equitable distribution determination after a nonjury trial, and thecourt's assessment of the credibility of the witnesses is entitled to great weight on appeal (see Scher v Scher, 91 AD3d 842,846 [2012]; Schwartz v Schwartz,67 AD3d 989, 990 [2009]). Under the circumstances here, we decline to disturb the SupremeCourt's determination with respect to the equitable distribution of that property.[*2]
"It is within the Supreme Court's sound discretion todetermine whether a particular witness is qualified to testify as an expert, and its determinationwill not be disturbed in the absence of a serious mistake, an error of law, or an improvidentexercise of discretion" (Pignataro v Galarzia, 303 AD2d 667, 667-668 [2003]; see Riccio v NHT Owners, LLC, 79AD3d 998, 1000 [2010]; Hutchinson v Crown Equip. Corp., 48 AD3d 421 [2008]). Anexpert is qualified to proffer an opinion if he or she possesses "the requisite skill, training,education, knowledge, or experience to render a reliable opinion" (Pignataro v Galarzia,303 AD2d at 668; see Riccio v NHT Owners, LLC, 79 AD3d at 1000). "The competenceof an expert in a particular subject may derive from long observation and real world experience,and is not dependent upon formal training or attainment of an academic degree in the subject"(Riccio v NHT Owners, LLC, 79 AD3d at 1000 [internal quotation marks omitted]).Contrary to the appellant's contention, the Supreme Court providently exercised its discretion indetermining that one of the defendant's witnesses, a certified residential appraiser with more than10 years of experience, was qualified to testify as an expert with respect to valuation of theparties' respective residential properties (see Langer v Miller, 305 AD2d 270, 271[2003]).
The Supreme Court properly awarded the defendant an attorney's fee in the sum of $5,000,based on the relative financial circumstances of the parties, the relative merits of their positionsat trial, and its finding that the appellant's actions prolonged the litigation (see DomesticRelations Law § 237 [a]; Johnsonv Chapin, 12 NY3d 461, 467 [2009]; Quinn v Quinn, 73 AD3d 887 [2010]).
The appellant's remaining contentions are either unpreserved for appellate review or withoutmerit. Rivera, J.P., Dillon, Leventhal and Chambers, JJ., concur.