| Suppa v Suppa |
| 2013 NY Slip Op 08711 [112 AD3d 1327] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| —Patricia M. Suppa, Respondent, v Frank J. Suppa,Appellant. |
—[*1] Thomas F. O'Brien, Clinton, for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Oneida County (Joan E. Shkane,A.J.), entered December 3, 2012 in a divorce action. The judgment, among other things,dissolved the marriage between the parties and determined the equitable distribution ofthe marital assets.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: On appeal from a judgment of divorce that, inter alia, distributedmarital property, defendant contends that Supreme Court erred in finding that hecommitted fraud because the court failed to set forth any basis for that finding. We rejectthat contention. The basis for that finding is set forth in the court's findings of fact, whichare supported by the record, i.e., that defendant agreed to add plaintiff's name to his bankaccounts containing a certain amount of money in exchange for plaintiff adding his nameto the deed of her separate property, but that defendant withdrew those funds from thebank accounts the following week. While we agree with defendant that the court erred inconsidering whether to impose a constructive trust because defendant did not seek thatremedy, we reject his contention that the court's decision on equitable distribution wasflawed as a result of its mere consideration of such a remedy.
Contrary to defendant's contention, the court's valuation of the marital home wasappropriate. The value was within the range of values provided by the parties' experts(see generally Atwal v Atwal [appeal No. 2], 270 AD2d 799, 799 [2000], lvdenied 95 NY2d 761 [2000]; Francis v Francis, 262 AD2d 1065, 1066[1999]). Inasmuch as defendant did not establish that the value of the marital homeincreased as a result of his work on the property, the court did not err in failing toprovide defendant with a credit for that work (see Vanyo v Vanyo, 79 AD3d 1751, 1751-1752 [2010]; Juhasz v Juhasz, 59 AD3d1023, 1024-1025 [2009], lv dismissed 12 NY3d 848 [2009]). In addition,the court properly held that defendant did not establish that the cost of the improvementsto the home were made from separate as opposed to marital funds (see Reed v Reed, 55 AD3d1249, 1250 [2008]). Indeed, defendant testified that the household expenses werepaid from one account and that at least some of plaintiff's income as well as his incomewas deposited in that account. The court credited defendant with the down payment hemade on the house from his separate property, but properly declined to credit defendantwith his payment toward the closing costs because those [*2]expenses were not a part of the home's value (see generally Mirand vMirand, 53 AD3d 1149, 1150 [2008]).
The court properly exercised its discretion in awarding plaintiff approximately halfthe amount of her counsel fees. Defendant contends that plaintiff had enough income andassets to pay her own counsel fees, but we note that there is no requirement that a partymust demonstrate an inability to pay (see DeCabrera v Cabrera-Rosete, 70 NY2d879, 881 [1987]). Indeed, defendant failed to rebut the presumption that the less moniedspouse is entitled to counsel fees (see Domestic Relations Law § 237 [a];Leonard v Leonard, 109AD3d 126, 129-130 [2013]). The circumstances of the case, including the relativemerit of the parties' positions, support the award (see Blake v Blake [appeal No.1], 83 AD3d 1509, 1509 [2011]; see generally DeCabrera, 70 NY2d at 881). Wehave considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Centra, Lindley, Sconiers and Valentino, JJ.