| Smithie v Smithie |
| 2014 NY Slip Op 07647 [122 AD3d 719] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Antony Smithie,Appellant-Respondent, v Kristin Smithie,Respondent-Appellant. |
Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), forappellant-respondent.
Alexander E. Sklavos, P.C., Jericho, N.Y. (Dawn M. Marconi of counsel),for respondent-appellant.
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, Nassau County(Zimmerman, J.), entered April 22, 2013, which, upon a decision of the same court datedJune 22, 2012, made after a nonjury trial, inter alia, awarded the defendant exclusivepossession of the marital residence until the date of her remarriage or the date that theparties' youngest child graduates from high school, whichever occurs first, directed that,after the sale of the marital residence and after the deductions specified, the proceeds ofthe sale shall be divided 50% to the plaintiff and 50% to the defendant, failed toequitably distribute the value of the defendant's jewelry, awarded the defendant certainchild support, and valued the parties' Satovsky investment as of the date of thecommencement of the action, and the defendant cross-appeals from so much of the samejudgment as failed to direct the equitable distribution of the plaintiff's "trackingstock."
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof directing that, after the sale of the maritalresidence and after the deductions specified, the proceeds of the sale shall be divided50% to the plaintiff and 50% to the defendant, and substituting therefor a provisiondirecting that, after sale of the marital residence and after the deductions specified, theproceeds of the sale shall be divided 70% to the plaintiff and 30% to the defendant, and(2) by adding a provision thereto awarding the plaintiff a credit of $8,450, representinghalf of the value of a diamond ring the plaintiff gave to the defendant during themarriage; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, with costs to the plaintiff.
The plaintiff and the defendant were married in 1997 and have three children, bornin 2000, 2002, and 2004. After approximately 10 years of marriage, the plaintiffcommenced this action for a divorce and ancillary relief. In January 2011, the partiesentered into a custody stipulation by which they agreed that they would have joint legaland physical custody of the children. All other issues were resolved after a nine-day trialconducted from March 2012 through May 2012. The Supreme Court issued a writtendecision in June 2012, and a judgment of divorce was entered on April 22,2013.
[*2] In reviewing a judgment renderedin an action for a divorce and ancillary relief, this Court's power is as broad as that of thetrial court (cf. O'Brien v O'Brien, 66 NY2d 576, 590 [1985]). Inasmuch as thedetermination here was made after a nonjury trial, this Court " 'may render thejudgment it finds warranted by the facts' " (Rizzo v Rizzo, 120 AD3d 1400, 1402 [2014], quotingNorthern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d492, 499 [1983]; see Miceli vMiceli, 78 AD3d 1023, 1024-1025 [2010]).
The Supreme Court providently exercised its discretion in awarding the defendantexclusive possession of the marital home until the date of her remarriage or the date thatthe parties' youngest child graduates from high school, whichever occurs first (see Sinanis v Sinanis, 114AD3d 756, 757 [2014]). Nonetheless, under the circumstances of this case,awarding the defendant 50% of the net proceeds from the eventual sale of the house wasan improvident exercise of discretion (see Rizzo v Rizzo, 120 AD3d 1400 [2014]; Scher v Scher, 91 AD3d842, 846 [2012]; Post vPost, 68 AD3d 741, 742 [2009]). Accordingly, we modify the judgment toprovide that, upon the sale of the marital residence, the plaintiff is entitled to 70% of thenet proceeds, taking into account the deductions provided for in the judgment (seePost v Post, 68 AD3d at 742).
Gifts given by one spouse to another during a marriage are marital property and,thus, are subject to equitable distribution (see Ferina v Ferina, 286 AD2d 472,474 [2001]; Feldman v Feldman, 204 AD2d 268, 269 [1994]; Foppiano vFoppiano, 166 AD2d 550, 551 [1990]). Here, the defendant testified that, during themarriage, the plaintiff gave her a diamond ring valued at $16,900. The Supreme Courterred in failing to equitably distribute the value of that item. Accordingly, the plaintiff isentitled to a credit of $8,450 (see Appel v Appel, 54 AD3d 786, 789 [2008]).
The parties' remaining contentions are without merit. Balkin, J.P., Leventhal,Hinds-Radix and LaSalle, JJ., concur.