| Gately v Gately |
| 2014 NY Slip Op 00018 [113 AD3d 1093] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| Susan Gately, Respondent, v James Gately,Appellant. |
—[*1] Damon Morey LLP, Buffalo (Michael J. Willett of counsel) and J. Adams &Associates, PLLC, Williamsville, for plaintiff-respondent.
Appeal from an amended judgment of the Supreme Court, Erie County (John F.O'Donnell, J.), dated March 25, 2011 in a divorce action. The amended judgment, amongother things, distributed marital assets and ordered defendant to pay plaintiffmaintenance.
It is hereby ordered that the amended judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: In this divorce action, defendant appeals from an amended judgmentthat, inter alia, distributed marital assets and ordered him to pay maintenance to plaintiff.We reject defendant's contention that Supreme Court abused its discretion in awardingmaintenance to plaintiff. " 'As a general rule, the amount and duration of maintenance arematters committed to the sound discretion of the trial court' " (Frost v Frost, 49 AD3d1150, 1150-1151 [2008]). There is no abuse of discretion here, given that the recordestablishes that the court appropriately considered plaintiff's "reasonable needs andpredivorce standard of living in the context of the other enumerated statutory factors" setforth in Domestic Relations Law § 236 (B) (6) (a) (Hartog v Hartog, 85NY2d 36, 52 [1995]).
We reject defendant's further contention that the court erred in determining thatcertain investment accounts, stock options, deferred compensation benefits, and parcelsof real property were marital property subject to equitable distribution. "It is wellestablished that [e]quitable distribution presents issues of fact to be resolved by the trialcourt, and its judgment should be upheld absent an abuse of discretion" (Swett v Swett, 89 AD3d1560, 1561 [2011] [internal quotation marks omitted]). "Marital property is broadlydefined as 'all property acquired by either or both spouses during the marriage' "(Price v Price, 69 NY2d 8, 11 [1986], quoting Domestic Relations Law §236 [B] [1] [c]). The term " 'marital property' . . . should be construedbroadly in order to give effect to the 'economic partnership' concept of themarriage relationship recognized in the statute" (id. at 15). A party asserting aseparate property claim must " 'trace the source of the funds . . . withsufficient particularity to rebut the presumption that they were marital property' " (Bailey v Bailey, 48 AD3d1123, 1124 [2008]; see Swett, 89 AD3d at 1561-1562; Bennett v Bennett, 13 AD3d1080, 1082 [2004], lv denied 6 NY3d 708 [2006]). "[S]eparate propertywhich is commingled with [*2]marital property or issubsequently titled in the joint names of the spouses is presumed to be marital property"(Chiotti v Chiotti, 12 AD3d995, 996 [2004]; seeRichter v Richter, 77 AD3d 1470, 1471 [2010]; Di Nardo v Di Nardo,144 AD2d 906, 906 [1988]). The party seeking a finding of separate property has theburden of rebutting that presumption (see Frost, 49 AD3d at 1151; Haas vHaas, 265 AD2d 887, 888 [1999]), and we conclude that defendant failed to meetthat burden with respect to the assets in question.
The court also properly required defendant to maintain a policy of life insurance tosecure his child support and maintenance obligations (see Domestic RelationsLaw § 236 [B] [8] [a]). Finally, we decline to grant plaintiff's request thatdefendant be required to pay the printing costs for her separately filed appendix (cf.Wittig v Wittig, 258 AD2d 883, 884-885 [1999]). Present—Scudder, P.J.,Smith, Peradotto, Lindley and Sconiers, JJ.