| Patete v Rodriguez |
| 2013 NY Slip Op 05682 [109 AD3d 595] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Ralph Patete, Appellant, v Irma Rodriguez,Respondent. |
—[*1] Ann L. Detiere, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Queens County(Jackman-Brown, J.), entered February 23, 2012, which, upon decisions dated June 29,2011, and August 11, 2011, respectively, and upon the findings of fact and conclusionsof law of the same court entered February 23, 2012, made after a nonjury trial, inter alia,(a) failed to award him a separate property credit in the sum of $135,000 with respect tothe purchase of the former marital residence, (b) awarded the defendant 50% of the saleproceeds of an unimproved parcel of real property located in Puerto Rico known as "ElVerde," (c) failed to award him a separate property credit in the sum of $15,000representing funds which were used to remodel an upstairs bathroom at a house locatedon 64th Street, in Maspeth, Queens, (d) awarded the defendant counsel fees in the sum of$78,000, and failed to award him counsel fees, (e) awarded the defendant child supportin the monthly sum of $1,303.34, retroactive to October 1, 2011, until the parties'youngest daughter attains the age of 21 or is sooner emancipated, (f) directed him to pay50% of the college tuition and related expenses for the parties' youngest child, computedwith a "SUNY cap," retroactive to commencement of the instant action for a period ofthree years, and (g) failed to award him a credit of 50% of $49,000 in marital assetsallegedly converted by the defendant in anticipation of commencement of the instantaction.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by (1) adding a provision thereto awarding the plaintiff a separate propertycredit in the sum of $121,330.53 representing his contribution of separate funds topurchase the former marital residence, (2) deleting the provision thereof awarding thedefendant 50% of the sale proceeds of an unimproved parcel of real property located inPuerto Rico known as "El Verde," and substituting therefor provisions (a) awarding theplaintiff ownership of that property as his separate property, and (b) awarding thedefendant the sum of $11,124.14 as a distributive award attributable to that property, (3)adding a provision thereto awarding the plaintiff a separate property credit in the sum of$15,000 representing funds which were used to remodel an upstairs bathroom at a houselocated on 64th Street in Maspeth, Queens, and (4) deleting the provision thereofdirecting the plaintiff to pay 50% of the college tuition and related expenses for theparties' youngest child, computed with a "SUNY cap," retroactive to commencement ofthe instant action for a period of three years, and substituting therefor a provisiondirecting the plaintiff to pay 39% of the college tuition and related expenses for theparties' youngest child, computed with a "SUNY cap," [*2]retroactive to the child's first year and continuing until shegraduates, reaches the age of 21, or is sooner emancipated, and that his child supportobligation be decreased by the amount of any college room and board expenses theplaintiff incurs while the child attends college; as so modified, the judgment is affirmedinsofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Queens County, for the entry of an amended judgment.
The parties married for the first time on December 24, 1978. On May 14, 1980,during this marriage, they jointly purchased a house located on 68th Street in Maspeth,Queens (hereinafter the 68th Street property). However, the parties entered into aseparation agreement on February 8, 1981, pursuant to which, on the same date, thedefendant conveyed her interest in the 68th Street property to the plaintiff. The partiesdivorced on March 5, 1981. The divorce decree incorporated but did not merge theseparation agreement. The defendant's name was never placed back on the deed to thehouse prior to their second marriage, in 1985. The plaintiff sold the 68th Street propertyon February 17, 1987, and used a total of $125,000 of the proceeds to purchase theformer marital home, located on 64th Street in Maspeth, Queens (hereinafter the 64thStreet property).
The bargain and sale deed by which the defendant conveyed her interest in the 68thStreet property to the plaintiff was duly executed by the defendant and was accompaniedby a notarized acknowledgment. This gave rise to a presumption of due execution (see Nidositko v Nidositko, 92AD3d 653, 654 [2012]; D'Elia v D'Elia, 14 AD3d 477, 478 [2005]; Elder v Elder, 2 AD3d671, 672 [2003]), which the defendant failed to rebut. Although she correctly pointsout that "[t]he transfer of title to a marital residence between spouses during the marriageis not determinative of whether the property is separate or marital" (La Rochelle v La Rochelle, 44AD3d 1011, 1011 [2007]), the subject transfer took place pursuant to a separationagreement, and prior to the marriage at issue herein. Significantly, the separationagreement was incorporated but not merged into the judgment of divorce that ended theparties' first marriage. Consequently, since the defendant has failed to adduce anyevidence to rebut the presumption that the subject deed was duly executed, it validlytransferred the defendant's pre-marital interest in the 68th Street property to the plaintiff.Moreover, since this property remained solely titled in the plaintiff's name until he sold itin 1987, it remained his separate property until the sale. Accordingly, as the plaintiffcontends, the documented use of two checks from the sale of the 68th Street property inthe sums of $82,500 and $42,500 (totaling $125,000) to purchase the 64th Streetproperty, which was clearly marital property, entitles him to a separate property credit forthis contribution of separate funds to purchase the former marital home in the sum of$125,000 (see Golden vGolden, 98 AD3d 647, 649 [2012]).
Nonetheless, the plaintiff did not overcome the presumption that the funds used tomake mortgage payments with respect to the 68th Street property during the course of thesubject marriage, i.e., from March 15, 1985 (the date of the second marriage), toFebruary 17, 1987 (when the house was sold), were marital (see DomesticRelations Law § 236 [B] [1] [c]; Shah v Shah, 100 AD3d 734, 735 [2012]; Spera v Spera, 71 AD3d661, 664 [2010]). Thus, the defendant should receive a credit for one-half of themarital funds used to the pay this mortgage on the plaintiff's separate property (see Khan v Ahmed, 98 AD3d471, 472-473 [2012]; Bernholc v Bornstein, 72 AD3d 625, 628 [2010]). Therecord demonstrates that the total amount of marital funds used for this purpose was$7,338.94, one-half of which is $3,669.47. Accordingly, the defendant's separateproperty credit for his contribution of separate funds to purchase the former marital homein the sum of $125,000 must be reduced by $3,669.47, resulting in a final separateproperty credit in the sum of $121,330.53 (see Davidman v Davidman, 97 AD3d 627, 628 [2012]).
However, the defendant is not entitled to the increase in the value, if any, of the 68thStreet property that occurred during the course of the subject marriage. Although theappreciation of, or increase in the value of, separate property is considered separateproperty, "except to the extent that such appreciation is due in part to the contributions orefforts of the other spouse" (Domestic Relations Law § 236 [B] [1] [d] [3]), here,the defendant failed to carry her burden establishing that the 68th Street propertyappreciated in value during the parties' marriage and, if so, that such appreciation wasdue in part to her efforts (see Davidman v Davidman, 97 AD3d at 628).[*3]
The plaintiff's contention that he is entitled to aseparate property credit for $10,000 used as part of the parties' down payment on theformer marital home (the 64th Street property), which funds he claims were a gift to himfrom his mother, is without merit. The defendant testified that these funds were a gift toboth parties, and under the circumstances presented here, we decline to disturb theSupreme Court's credibility determination which formed the basis for its denial of theplaintiff's request for an award of the claimed separate property (see Formica v Formica, 101AD3d 805, 806 [2012]; Campione v Alberti, 98 AD3d 706, 707 [2012]).
Although the defendant does not take issue on appeal with the plaintiff's contentionthat a property located in Puerto Rico consisting of a vacant lot, known as "El Verde," ishis separate property, she contends that she is entitled to a portion of the appreciation inits value over the course of the marriage. Contrary to the defendant's contention, shefailed to sustain her burden of demonstrating the manner in which her contributions, ifany, resulted in the increase in the value of this vacant parcel over the course of themarriage (see Formica v Formica, 101 AD3d at 806; Embury v Embury, 49 AD3d802, 804 [2008]; Micheliniv Michelini, 47 AD3d 902, 903 [2008]; Burgio v Burgio, 278 AD2d767, 769 [2000]; Chan v Chan, 267 AD2d 413, 414 [1999]; Elmaleh vElmaleh, 184 AD2d 544 [1992]). Accordingly, the "El Verde" property should bedistributed solely to the plaintiff as his separate property.
However, the defendant should have been awarded a credit for one-half of themarital funds used to pay for taxes and maintenance of the "El Verde" property totaling$22,248.27, one-half of which is $11,124.14 (see Khan v Ahmed, 98 AD3d at472-473; Bernholc v Bornstein, 72 AD3d at 628). Although the defendant claimson appeal that she is also entitled to reimbursement for the use of marital funds to pay forreal estate taxes on the "El Verde" property after this action was commenced, she waivedany such claim when she explicitly agreed to this payment of real estate taxes in aso-ordered stipulation before the trial, in which, inter alia, she acknowledged thatpayment of these real estate taxes constituted a "marital obligation" for which bothparties were equally responsible.
The Supreme Court should have granted the plaintiff's request for a separate propertycredit in the sum of $15,000, since the defendant admitted in her response to theplaintiff's notice to admit that the plaintiff inherited funds in that amount which wereused to remodel an upstairs bathroom at the 64th Street property during the marriage(see Domestic Relations Law § 236 [B] [1] [d] [3]).
Furthermore, in light of the circumstances of this case, we decline to disturb theSupreme Court's award of $78,000 in counsel fees to the defendant. An award of anattorney's fee pursuant to Domestic Relations Law § 237 (a) is a matter within thesound discretion of the trial court, and the issue "is controlled by the equities andcircumstances of each particular case" (Morrissey v Morrissey, 259 AD2d 472,473 [1999]; see Gruppuso vCaridi, 66 AD3d 838, 839 [2009]). In determining whether to award fees, thecourt should review the financial circumstances of both parties together with all the othercircumstances of the case, which may include the relative merit of the parties' positionsand whether either party has engaged in conduct or taken positions resulting in a delay ofthe proceedings or unnecessary litigation (see Quinn v Quinn, 73 AD3d 887 [2010]; Prichep v Prichep, 52 AD3d61, 64-65 [2008]). Here, although the parties are on relatively equal financialfooting, the record supports the Supreme Court's conclusion that, but for the plaintiff'sconduct in this case, the defendant would not have incurred significant legal fees (seeQuinn v Quinn, 73 AD3d at 887). Accordingly, the Supreme Court providentlyexercised its discretion in awarding the defendant counsel fees and denying the plaintiff'srequest for an award of counsel fees.
We reject the plaintiff's contention that the Supreme Court erred in concluding thatthe income that he reported earning in his 2007 tax returns, rather than the income hereported in his 2009 tax returns, was an accurate reflection of his current earning capacityfor the purpose of calculating his child support obligation. "A court need not rely upon aparty's own account of his or her finances, but may impute income based upon the party'spast income or demonstrated future potential earnings" (Haagen-Islami v Islami, 96AD3d 1004, 1005 [2012] [internal quotation marks omitted]; see Sotnik v Zavilyansky, 101AD3d 1102, 1103 [2012]; Cusumano v Cusumano, 96 AD3d 988, [*4]989 [2012]). "The court may impute income to a partybased on his or her employment history, future earning capacity, educational background,or money received from friends and relatives" (Haagen-Islami v Islami, 96 AD3dat 1005 [internal quotation marks omitted]; see Sotnik v Zavilyansky, 101 AD3dat 1104). Here, in light of the plaintiff's earning power and substantial assets, theSupreme Court did not improvidently exercise its discretion in imputing his 2007reported income to him for the purpose of determining his child support obligation (see Matter of D'Altilio vD'Altilio, 14 AD3d 701, 701 [2005]; Matter of Ogborn v Hilts, 262AD2d 857, 859 [1999]; Matter of Webb v Rugg, 197 AD2d 777, 778 [1993]).Contrary to the plaintiff's further contention, the court did not improvidently exercise itsdiscretion by not also imputing to the defendant her 2007 income. The defendant madefinancial disclosure to the court, and appeared to be earning income consistent with her "'education and opportunities' " (Matter of Genender v Genender, 51 AD3d 669, 670[2008], quoting Kay v Kay, 37 NY2d 632, 637 [1975]).
However, we agree with the plaintiff that he should have been directed to pay onlyhis pro rata share of 39%, rather than 50%, of the college tuition and related expenses forthe parties' youngest child, computed with a "SUNY cap," and only retroactive to thatchild's first year of college and continuing until she graduates, reaches the age of 21, or issooner emancipated (see Matterof Ataande v Ataande, 77 AD3d 742, 742 [2010]; Fishbein v Fishbein, 72 AD3d1021, 1022 [2010]; Reinisch v Reinisch, 226 AD2d 615, 616 [1996]). Inaddition, the plaintiff correctly argues that the Supreme Court should have directed thathis child support obligation be decreased by the amount of any college room and boardexpenses he incurs while the child attends college (see Sotnik v Zavilyansky, 101AD3d at 1104; Ayers vAyers, 92 AD3d 623, 625 [2012]; Matter of Levy v Levy, 52 AD3d 717, 718 [2008];Reinisch v Reinisch, 226 AD2d 615 [1996]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Chambers, Halland Miller, JJ., concur.