| Lamparillo v Lamparillo |
| 2014 NY Slip Op 02754 [116 AD3d 924] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Leigh Ann Lamparillo,Respondent-Appellant, v Gregory Lamparillo,Appellant-Respondent. |
—[*1] Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Orange County (Marx, J.),dated April 16, 2012, as, upon findings of fact and conclusions of law dated April 16,2012, and a decision dated November 22, 2011, made after a nonjury trial, (a) directedhim to pay maintenance to the plaintiff in the sum of $550 per week for a period of threeyears, (b) directed the sale of the marital residence and the equal division of the netproceeds between the parties after the payment of all marital debt, including credit carddebt in the amount of $22,648, and after payment of $7,000 to the plaintiff for herone-half interest in the household furnishings and other items, (c) failed to give him theoption of purchasing the plaintiff's interest in the marital residence, and (d) awarded hima separate property credit of only $180,000 for alleged separate funds he contributed tothe construction of the marital residence, and directed that the credit be satisfied by hisparents' repayment to him of a loan made to them by the parties, and the plaintiffcross-appeals, as limited by her brief, from so much of the same judgment as awarded thedefendant a separate property credit of $180,000 for funds he contributed to theconstruction of the marital residence.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,by (1) deleting the provision thereof awarding the defendant a separate property credit inthe sum of $180,000 and directing that the credit be satisfied by his parents' repayment tohim of a loan made to them by the parties, and (2) deleting the provision thereof directingthe sale of the marital residence; as so modified, the judgment is affirmed insofar asappealed from, with costs to the plaintiff, and the matter is remitted to the SupremeCourt, Orange County, for further proceedings in accordance herewith, and thereafter,the entry of an appropriate amended judgment.
When determining a maintenance obligation, "[w]here a party's account of his or herfinances is not believable, the court may impute a true or potential income higher thanthat alleged" (DiPalma vDiPalma, 112 AD3d 663, 664 [2013] see Kessler v Kessler, 111 AD3d 895 [2013]). Here, theSupreme Court providently exercised its discretion in imputing income to the defendantbased on, inter alia, information he provided in a bankruptcy petition (see Duffy v Duffy, 84 AD3d1151, 1152 [2011] [*2]Greisman v Greisman, 98 AD3d 1079, 1080[2012]).
" '[T]he amount and duration of maintenance is a matter committed to the sounddiscretion of the trial court, and every case must be determined on its own unique facts' "(DiBlasi v DiBlasi, 48AD3d 403, 404 [2008], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]). In viewof the relevant factors, including the income of the parties, the length of the marriage, thepresent and future earning capacity of the parties, and the ability of the party seekingmaintenance to become self-supporting, the Supreme Court providently exercised itsdiscretion in awarding the plaintiff weekly maintenance in the sum of $550 for a periodof three years (see Domestic Relations Law § 236 [B] [6] [a] Duffy vDuffy, 84 AD3d at 1152; Groesbeck v Groesbeck, 51 AD3d 722, 723 [2008] Schwalb v Schwalb, 50 AD3d1206, 1210 [2008]).
The Supreme Court awarded the defendant an equitable distribution credit in the sumof $180,000 for a contribution of alleged separate property he made toward theconstruction of the marital residence. To satisfy the credit, the court directed that$180,000 the parties loaned to his parents should be repaid only to him. However, whilethe defendant testified that he used his separate funds to pay for materials used toconstruct the marital residence, he offered no additional evidentiary support for his claim(see McLoughlin vMcLoughlin, 63 AD3d 1017, 1019 [2009] Romano v Romano, 40 AD3d 837, 838 [2007] Murphy v Murphy, 4 AD3d460, 461 [2004]). Since the defendant failed to meet his burden of establishing thatthe $180,000 was separate property, he was not entitled to a credit. Consequently, the$180,000 the parties loaned to the defendant's parents should be repaid to both parties.
The Supreme Court providently exercised its discretion in equally allocatingresponsibility for certain credit card debt in the amount of $22,648 that the plaintiffincurred prior to this action, as the plaintiff demonstrated that it constituted marital debt(see Alleva v Alleva, 112AD3d 567, 569 [2013] Rodriguez v Rodriguez, 70 AD3d 799, 802 [2010]).
Contrary to the defendant's contention, the Supreme Court providently awarded theplaintiff $7,000 for one half the value of, inter alia, the furnishings in the maritalresidence and certain other items.
Under the circumstances of this case, the Supreme Court improvidently exercised itsdiscretion in directing the sale of the marital residence without first offering thedefendant the option of retaining exclusive occupancy of the marital residence bypurchasing the plaintiff's interest therein (see Aebly v Lally, 112 AD3d 561, 563 [2013] Ierardi vIerardi, 151 AD2d 548, 548-549 [1989] see also Bartek v Draper, 309AD2d 825, 826 [2003]). In order to exercise the option to purchase the plaintiff's interest,the defendant shall, within three months after service upon him of a copy of this decisionand order with notice of entry, pay off the remaining balances of all existing maritaldebts on the property, including the mortgage and the home equity loan. Upon her receiptof proof of satisfaction of these debts, the plaintiff shall convey her interest in the maritalresidence to the defendant, and the Supreme Court shall recalculate the equitabledistribution award and make appropriate adjustments, taking into account the exercise ofthe option and satisfaction of the marital debts on the property and the conveyance oftitle. In the event that the option to purchase is not successfully exercised by thedefendant within the time allotted, the marital residence shall be sold in accordance withthe terms set forth in the judgment appealed from. Within 30 days of service upon him ofa copy of this decision and order with notice of entry, the defendant shall notify theSupreme Court and the plaintiff's counsel, in writing, whether he intends to exercise theoption. In the event the defendant fails to do so, he shall be deemed to have waived theoption (see Aebly v Lally, 112 AD3d at 563-564). Mastro, J.P., Chambers,Austin and Miller, JJ., concur.
[Recalled and vacated, see 130 AD3d 580.]