| Nederlander v Nederlander |
| 2013 NY Slip Op 00023 [102 AD3d 416] |
| January 3, 2013 |
| Appellate Division, First Department |
| Lindsey Kupferman Nederlander,Respondent, v Eric Nederlander, Appellant. |
—[*1] Cohen Rabin Stine Schumann LLP, New York (Martha Cohen Stine of counsel), forrespondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered on orabout April 17, 2012, which, to the extent appealed from, ordered defendant to pay 50%of the balances owed on the mortgages on the marital residence in the event that he isunable to refinance the mortgages or obtain extensions of the mortgage notes,unanimously affirmed, without costs.
Domestic Relations Law § 234 empowers the court to "make such direction,between the parties, concerning the possession of property, as in the court's discretionjustice requires having regard to the circumstances of the case and of the respectiveparties." Accordingly, pursuant to Domestic Relations Law § 234, the court cannot only order that a party turn over marital property, but also that he or she refrain fromtransferring or disposing of it (Leibowits v Leibowits, 93 AD2d 535, 537 [2dDept 1983]). The power to issue preliminary injunctions affecting property in divorceactions stems from the recognition that while spouses have no legal or beneficial interestin marital property prior to a judgment of divorce, they nevertheless have an expectancyin that property (see id. at 540-545 [O'Connor, J., concurring]). Thus, in order toprotect that expectancy pending equitable distribution, to maintain the status quo, and toprevent the dissipation of marital property, the court must be able to issue orders toensure that such marital property is protected should it later become the subject ofequitable distribution (id.; Rosenshein v Rosenshein, 211 AD2d 456, 456[1st Dept 1995]; Drazal v Drazal, 122 AD2d 829, 831 [2d Dept 1986]).
Here, contrary to defendant's assertion, the motion court's order, insofar as it ordereddefendant to pay 50% of the balances owed on the mortgages on the marital residence inthe event that he is unable to refinance the mortgages or obtain extensions of themortgage notes, was a proper exercise of its discretion pursuant to Domestic RelationsLaw § 234. Specifically, the record indicates that the bank was planning toforeclose on the marital residence and that defendant—in failing to submit arequested application and financial information to the bank until after the instant motionwas made, months after the same was requested by the bank, and months after plaintiffsubmitted her information and application to the bank—was either by design orneglect contributing to the foreclosure. Thus, the motion court, to ensure that the maritalhome would not be lost to foreclosure, prior to trial and a final judgment of divorce,providently exercised its discretion in ordering defendant to cooperate in obtaining anextension of the loans and/or a refinancing of the [*2]loans (see Weinstock v Weinstock, 8 Misc 3d 221 [Sup Ct,Nassau County 2005] [defendant directed to cooperate and execute the documentsnecessary to secure refinancing of the loan on the marital premises since the failure to doso would result in dissipation of the property]; Lidsky v Lidsky, 134 Misc 2d 511[Sup Ct, Westchester County 1986]).
For the very same reasons, despite defendant's purported inability to pay half of theoutstanding mortgages on the marital home, the motion court properly ordered that he doso if he was unsuccessful in refinancing or obtaining an extension. Contrary todefendant's assertion, the motion court did not err in implicitly concluding that defendanthad the ability to pay half of the outstanding mortgages. While defendant, pointing to hismodest earnings and substantial debt, claims that he lacks the financial resources tocomply with the court's order, his deposition testimony belies his assertion, evincinginstead that he actually has access to seemingly unlimited financial resources, which canbe, and were, justifiably imputed to defendant as income and/or assets.
At his deposition, defendant testified that while he only earned approximately $700per week as an employee with his father's company, all of his bills, both personal andbusiness, are, and have been paid by his father. Defendant further testified that all of hisbills are mailed directly to his father's company where they are then reviewed bydefendant's assistant. Thereafter, defendant's father wires funds to the company's accountsufficient to cover defendant's expenses, defendant's assistant then draws companychecks, and defendant then executes them. Thus, the record evinces significantdistributions to defendant from his family business during the marriage and thatdefendant received support from his father extending over several years. While defendantcharacterized his father's aid as loans, totaling $4 million at the time of his deposition,and as per his statement of net worth, over $6.5 million in 2010, he nevertheless testifiedthat he has not paid his father back. Based on the foregoing, clearly, the substantial andongoing financial aid provided to defendant by his father is either a gift, imputable asincome (Fabrikant vFabrikant, 62 AD3d 585, 586 [1st Dept 2009]; Rostropovich vGuerrand-Hermes, 18 AD3d 211, 211 [1st Dept 2005]; Wildenstein vWildenstein, 251 AD2d 189, 190 [1st Dept 1998]; Lapkin v Lapkin, 208AD2d 474, 474 [1st Dept 1994]), or a benefit provided to defendant by his father'scompany, also imputable as income (Isaacs v Isaacs, 246 AD2d 428, 428 [1stDept 1998] [trial court properly imputed income to defendant husband insofar as hereceived numerous benefits from his company, namely cash outlays for personalexpenses]).
Lastly, we find no merit to the defendant's contention that the motion court's orderconstitutes prejudgment equitable distribution of marital property. While it is true that inan action for divorce the court cannot distribute property by pendente lite order and priorto a final judgment of divorce (Stewart v Stewart, 118 AD2d 455, 456-457 [1stDept 1986]), here, the motion court never made any determination as to the parties'interests in the marital residence. Nor did the motion court order the equitabledistribution of the marital property pendente lite. Concur—Sweeny, J.P., Saxe,Richter, Abdus-Salaam and Román, JJ.