| Burnett v Burnett |
| 2012 NY Slip Op 08850 [101 AD3d 1417] |
| December 20, 2012 |
| Appellate Division, Third Department |
| Priscilla Burnett, Respondent, v Jack E. Burnett,Appellant. |
—[*1] Kriss, Kriss & Brignola, LLP, Albany (Charles T. Kriss of counsel), for respondent.
Garry, J. Appeal from that part of a judgment of the Supreme Court (Tomlinson, J.), enteredMarch 28, 2011 in Montgomery County, ordering equitable distribution of the parties' maritalproperty, upon a decision of the court.
The parties were married in 1974 and raised six grown children. During the course of themarriage, plaintiff (hereinafter the wife) worked within the home and defendant (hereinafter thehusband) was the primary wage earner, excluding a period during the marriage—describedby Supreme Court as "significant" in duration—when the husband left the wife andchildren dependant upon public assistance benefits and charity from her family. In 2002, in thecourse of his employment, the husband suffered personal injuries in a fall from a scaffold. In2006, the parties settled their claims for personal injury and loss of consortium in the combinednet sum of $1 million and deposited the funds into a joint investment account managed by theirson, with the stated intention of drawing $4,000 monthly from the account for their householdexpenses and support. In 2007, they jointly obtained a settlement payment upon a legalmalpractice action (arising from the underlying personal injury and consortium claims) in thesum of roughly $297,000. The husband deposited this check into his separate account.Thereafter, the husband engaged in extensive and habitual gambling, depleting the accounts.After learning of an adulterous affair in 2009, the wife withdrew the remaining balance of justunder $140,000 from the joint investment account. The husband has never accounted for thefunds from the malpractice settlement and Supreme Court found, based upon this failure andupon his "less than forthcoming testimony," that the possibility remained that he had secreted ortransferred assets.
Supreme Court awarded the wife title to the marital residence, the remaining balance of[*2]the investment account, and the household furnishings andfarm equipment. The husband received his checking account, plumbing business and equipment,and a motor boat and trailer. The husband appeals.
We reject the husband's contention that Supreme Court erred in determining that thesettlement funds were marital property. Although the governing statute provides thatcompensation for personal injury constitutes separate property (see Domestic RelationsLaw § 236 [B] [1] [d] [2]), here, Supreme Court noted the complete lack of any evidenceupon which the funds might have been allocated as between the husband's personal injury claimand the wife's consortium claim, and the substantial evidence supporting the legal presumptionthat the parties wished to treat the proceeds as joint assets of the marriage (see Cameron v Cameron, 22 AD3d911, 912 [2005]; Garner v Garner, 307 AD2d 510, 512 [2003], lv denied 100NY2d 516 [2003]). The parties received the initial settlement funds by joint check and depositedthe funds immediately into a joint investment account. Their son testified that he had offeredprofessional advice regarding their holdings and that the account was set up to pay out a monthlysum for deposit into the parties' household account for payment of their living expenses. Bytransferring his unallocated separate property portion of the settlement into the joint account, thehusband created a presumption that it was marital and was thus required to rebut thispresumption by clear and convincing evidence that the transfer was solely a matter ofconvenience (see Currie vMcTague, 83 AD3d 1184, 1185 [2011]; Fehring v Fehring, 58 AD3d 1061,1062 [2009]; Garner v Garner, 307 AD2d at 512; see also Crescimanno v Crescimanno, 33 AD3d 649, 649-650[2006]). We agree with Supreme Court that this burden was not met. Further, as noted above, thehusband retained the second settlement check from the malpractice claim separately (includingthe portion that may have been allocated to the consortium claim) and failed to offer anyaccounting for these funds. As he was awarded any balance of his separate accounts, he cannotbe heard to complain regarding the distribution of this asset.
The evidence of the husband's wasteful dissipation of marital assets was overwhelming.Records from the investment account and from several casinos were introduced into evidence.The documentation and testimony, including the husband's own admissions, clearly reveal that heengaged in extensive gambling over a period of several years, incurring significant debts anddepleting the substantial assets that should otherwise have been sufficient to support the parties attheir previous economic level and lifestyle indefinitely. There was no evidence whatsoeversupporting the contention that his actions should be in some manner condoned or forgiven as aresult of his head injury. Though the husband's gambling may be considered an addiction, thisdoes not excuse his gross economic misconduct in wasting the marital assets (see Conceicaov Conceicao, 203 AD2d 877, 879 [1994]; Wilner v Wilner, 192 AD2d 524, 525[1993]; see also Matter of Adelman, 293 AD2d 62, 65-66, 68-69 [2002]; Gadomski vGadomiski, 245 AD2d 579, 581 [1997]). Thus, according appropriate deference to SupremeCourt's credibility assessments and its "substantial discretion in fashioning an award," we findthe distribution to be well supported by the evidence (Lurie v Lurie, 94 AD3d 1376, 1378 [2012]; see Noble v Noble, 78 AD3d1386, 1387-1388 [2010]).
Rose, J.P., Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.