| Clark v Clark |
| 2014 NY Slip Op 03224 [117 AD3d 668] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Linda S. Clark, Respondent, v Arthur Clark, Jr.,Appellant. |
Kramer Kozek LLP, White Plains, N.Y. (Neil E. Kozek and Deborah Sherman ofcounsel), for appellant.
Helene M. Selznick, Somers, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1) from an orderof the Supreme Court, Westchester County (Scheinkman, J.), dated May 14, 2012, whichgranted the plaintiff's motion for an award of counsel fees to the extent of directing thedefendant to pay the plaintiff counsel fees in the sum of $20,000, and (2), as limited byhis brief, from stated portions of a judgment of the same court (Christopher, J.), datedJune 16, 2012, which, upon a decision of the same court (Christopher, J.) dated January27, 2012, made after a nonjury trial, among other things, awarded the plaintiff the sum of$185,126 as a distributive award relating to his company, Clark Development, LLC,denied his application for a credit for payment of maintenance in the sum of $8,000 forcertain temporary maintenance payments he made to the plaintiff, and awarded theplaintiff maintenance in the sum of $3,750 per month for a period of nine years.
Ordered that the order dated May 14, 2012, is affirmed, without costs ordisbursements; and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting the provisionthereof awarding the plaintiff the sum of $185,126 as a distributive award relating to thedefendant's company, Clark Development, LLC, and (2) by deleting the provision thereofdenying the defendant's application for a credit for the payment of maintenance in thesum of $8,000, and substituting therefor a provision granting that application; as somodified, the judgment is affirmed insofar as appealed from, without costs ordisbursements.
"Property acquired during the marriage is presumed to be marital property and theparty seeking to overcome such presumption has the burden of proving that the propertyin dispute is separate property" (Steinberg v Steinberg, 59 AD3d 702, 704 [2009] [internalquotations marks omitted]). The defendant overcame the presumption that funds hedeposited into the account of Clark Development, LLC (hereinafter CD, LLC), acompany he formed during the marriage, were marital funds by presenting sufficientevidence that the source of the funds was separate property (see Tsigler v Kasymova, 73AD3d 1159, 1160 [2010]). Moreover, although appreciation of, or increase in thevalue of, separate property is considered separate property, "except to the extent that suchappreciation is due in part to the contributions or efforts of the other spouse" (DomesticRelations [*2]Law § 236 [B] [1] [d] [3]),the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant'sseparate property, appreciated in value during the parties' marriage (see Patete v Rodriguez, 109AD3d 595, 598 [2013]). Accordingly, the Supreme Court erred in directing that theplaintiff was to receive a distributive award relating to CD, LLC.
The Supreme Court also erred in denying the defendant's application for a credit forthe payment of maintenance in the sum of $8,000, representing additional temporarymaintenance payments he made pursuant to an ex parte order to show cause brought bythe plaintiff prior to trial. In an order dated February 17, 2011, the Supreme Court(Walker, J.) found that the additional temporary maintenance was unwarranted and thatthe defendant was entitled to a credit for payments made. "The doctrine of the 'law of thecase' is a rule of practice, an articulation of sound policy that, when an issue is oncejudicially determined, that should be the end of the matter as far as Judges and courts ofco-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 NY2d 162,165 [1975]; see Ramanathan vAharon, 109 AD3d 529, 530 [2013]; Carbon Capital Mgt., LLC v American Express Co., 88 AD3d933, 935-936 [2011]). The trial court's determination to not grant the defendant the$8,000 credit to which Justice Walker determined he was entitled violated the doctrine oflaw of the case, since the issue of the defendant's entitlement to the credit was previouslydetermined on the merits, in the same action, in the order dated February 17, 2011.
"[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"(Rabinovich v Shevchenko,93 AD3d 774, 775 [2012], quoting Siskind v Siskind, 89 AD3d 832, 833 [2011]). "Indetermining the amount and duration of an award of maintenance, the Supreme Court'must consider the factors enumerated in Domestic Relations Law § 236 (B)(6) (a), which include the predivorce standard of living of the parties, the income andproperty of the parties, the equitable distribution of marital property, the duration of themarriage, the present and future earning capacity of the parties, the ability of the partyseeking maintenance to be self-supporting, and the reduced or lost earning capacity ofthe party seeking maintenance' " (Rabinovich v Shevchenko, 93 AD3d at775, quoting Giokas vGiokas, 73 AD3d 688, 689 [2010]). Considering the relevant factors, theSupreme Court providently exercised its discretion in awarding the plaintiff maintenancein the sum of $3,750 per month for a period of nine years.
The Supreme Court properly determined that the plaintiff was entitled to an award ofcounsel fees in the sum of $20,000 (see Domestic Relations Law§ 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]).
The defendant's remaining contention is without merit. Balkin, J.P., Dickerson,Leventhal and Roman, JJ., concur.