| Lowe v Lowe |
| 2014 NY Slip Op 08536 [123 AD3d 1207] |
| December 4, 2014 |
| Appellate Division, Third Department |
[*1]
| Bradley P. Lowe, Appellant-Respondent, v Sandra LLowe, Respondent-Appellant. |
Holmberg Galbraith & Miller, Ithaca (Dirk A. Galbraith of counsel), forappellant-respondent.
Sharon M. Sulimowicz, Ithaca, for respondent-appellant.
Clark, J. Cross appeals from a judgment of the Supreme Court (Rumsey, J.), enteredDecember 5, 2013 in Tompkins County, ordering, among other things, equitabledistribution of the parties' marital property, upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were marriedin 2005 and have no children together. In February 2012, the husband commenced thisaction for divorce. The parties stipulated to the grounds for divorce and the division ofsome marital assets, but proceeded to a nonjury trial on the issues of equitabledistribution, maintenance and counsel fees. Thereafter, Supreme Court granted thehusband an absolute divorce dissolving the marriage and ordered the distribution of themarital property, including several bank and investment accounts and the maritalresidence. The court also ordered that the husband pay the wife $23,000 in counsel fees,as well as $3,000 per month in spousal maintenance for approximately2
Beginning with the husband's claims of error with respect to equitable distribution,Supreme Court's first task was to determine whether assets were separate propertybelonging only to one spouse, or whether the assets were marital property (seeDomestic Relations Law § 236 [B] [1] [c], [d]). Notably, the appreciation invalue of separate property during the marriage may be subject to equitable distribution asmarital property where the nontitled spouse bears his or her burden of establishing that"such appreciation is due in part to [his or her] contributions or efforts" (DomesticRelations Law § 236 [B] [1] [d] [3]; see Johnson v Chapin, 12 NY3d 461, 466 [2009]; Jones v Jones, 92 AD3d845, 847 [2012], lv denied 19 NY3d 805 [2012]; Bernholc v Bornstein, 72AD3d 625, 628 [2010]). Supreme Court found the appreciation of the maritalresidence, the husband's Ameriprise investment portfolio and his IBM pension andsavings plans to be marital property. The husband now claims error arguing that three ofthe six investment accounts making up his portfolio should have been deemed separateproperty immune to equitable distribution.
The record reflects that, prior to the parties' marriage, the husband had an investmentportfolio that contained two annuities, a life insurance policy, a Roth individualretirement account (hereinafter IRA), an IRA rolled over from a former employer and amoney market account. The husband testified that he made no contributions to eitherannuity during the marriage, nor to the IRA. However, he further explained that he paidhis life insurance premium, invested in his IRA and made withdrawals from and depositsinto his money market account which was jointly held by the wife, all during the courseof his marriage. To this end, the parties agreed that accounts within the portfolio werefunded by money from their joint checking account, and the portfolio as a whole wasmanaged by the same investment broker. The parties further agree that the Ameripriseportfolio increased in value over the course of the marriage by $95,983; however, onappeal, the husband now argues that approximately $65,000 of this increase in value is infact separate property.
We find no error in the determination that the increase in value of the entireAmeriprise portfolio during the course of the marriage was marital property inasmuch asit was well within Supreme Court's sound discretion to credit the testimony that maritalmoney was used to fund the portfolio as a whole without delineating each of its parts.This seems especially so in light of the fact that the husband identified the entireportfolio as one asset in his pretrial submission to the court proposing disposition.Moreover, although the record contains statements from the three accounts in question,there is nothing in these documents to indicate that any contributions were or were notmade during the marriage. Thus, the husband failed to rebut thepresumption—beyond his own disputed testimony—that "this once separateasset became marital property" subject to equitable distribution (Cassara v Cassara, 1 AD3d817, 819 [2003]; cf.Chernoff v Chernoff, 31 AD3d 900, 903 [2006]).
Upon determining that a given asset constitutes marital property, a court must thenequitably distribute its value between the parties, considering "a variety of factorsincluding, among others, 'the income and property of each party at the time of marriage,and at the time of the commencement of the action; . . . the loss of healthinsurance benefits upon dissolution of the marriage; . . . any award ofmaintenance . . . ; . . . the probable future financialcircumstances of each party; [and] the wasteful dissipation of assets by eitherspouse' " (Roberto vRoberto, 90 AD3d 1373, 1375 [2011], quoting Domestic Relations Law§ 236 [B] [5] [d]). "Trial courts are accorded substantial deference indetermining what distribution of marital property is equitable" (Altieri v Altieri, 35 AD3d1093, 1094-1095 [2006] [citations omitted]; accord Cornish v Eraca-Cornish, 107 AD3d 1322, 1322[2013]). Here, both parties agree that the challenges on appeal relate to various assetsthat are properly characterized as the husband's separate property that appreciated overthe course of the parties' marriage, but the husband maintains that Supreme Court'sjudgment should be modified to reduce the amount of the wife's award of theappreciation in value of those assets from 50% to 20%.
We disagree. It is apparent that, in making its determination, Supreme Court properlyconsidered the appropriate statutory factors and applied them to the available evidence.Specifically, the record illustrates that, at the time of the parties' marriage, the wifeearned approximately $37,000 annually. At the conclusion of their six-year marriage,however, the husband was in good health and was earning approximately $110,000annually, while the wife was unemployed and collecting $14,688 each year from SocialSecurity disability after having been diagnosed with fibromyalgia, migraines, depressionand anxiety. The wife testified that, at the time of trial, she had insurance through thehusband and had learned that COBRA would cost approximately $500 per month or that,alternatively, medical insurance through Social Security would cost approximately $400to $500 each month. Supreme Court also considered its order requiring the husband topay the wife $3,000 in spousal maintenance monthly until July 2016 and reduced thewife's equitable distribution award by $15,955 based on her alleged wasteful dissipationof marital property. Thus, according appropriate deference to Supreme Court's credibilityassessments and its substantial discretion in fashioning an award, we find the 50%distribution of the increase in value of the marital residence ($43,068), the entireAmeriprise portfolio ($95,983), and the husband's IBM 401(k) savings plan ($225,000)to be well supported by the evidence (see Vertucci v Vertucci, 103 AD3d 999, 1000-1001 [2013];Holmes v Holmes, 25 AD3d931, 934 [2006]). The court also purported to allocate 50% of the increase in valuein the husband's IBM pension plan during the course of the marriage to each party, byallocating the wife 50% of $14,702.76. However, to the extent that it was undisputed thatthe marital portion of the pension plan was between $29,350 and $29,405.51, we agreewith the wife that Supreme Court made a mathematical error when calculating her awardand the wife should properly be awarded the entire $14,702.76.
We also agree with the wife that Supreme Court erred in failing to award her anyportion of the IBM stock purchased by the husband during the course of the marriage.Specifically, the record reveals that during the course of the marriage, the husbandpurchased stock through payroll deductions and also sold stock to buy a vehicle, reinvestand pay bills. The husband explained that, at the commencement of the marriage, heowned approximately 196 shares of stock and that, during the course of the marriage, hepurchased 283 shares and sold 399 shares, always selling the oldest shares first.Therefore, at the time of commencement of this action, the husband owned a net of 80shares of stock purchased during the marriage worth $193.64 per share resulting inmarital property valued at $15,647.66. Accordingly, the wife also should have beenawarded $7,823.83 representing her 50% equitable share of this marital asset.
To the extent that the wife argues that Supreme Court erred in finding that shewastefully dissipated marital assets, we find that this argument is unavailing. It isundisputed that, during the course of the marriage, the wife developed a shoppingproblem and, despite the husband's effort to stop her, bought over $30,000 worth ofitems from television shopping channels. Thus, we find no abuse of Supreme Court'sconsiderable discretion in reducing the wife's award by one half of the amount dissipated,or $15,955 (see Domestic Relations Law § 236 [B] [5] [d] [12]; Burnett v Burnett, 101 AD3d1417, 1419 [2012]; Noble vNoble, 78 AD3d 1386, 1387-1388 [2010]).
Next, we find that the requisite statutory factors were considered by Supreme Courtregarding maintenance and, contrary to the husband's contentions, the award of $3,000per month for a period of 30 months was well within the court's discretion (seeDomestic Relations Law § 236 [B] [6] [a]; Bemis v Bemis, 305AD2d 739, 740 [2003]). Specifically, based upon the disparity in the parties' resourcesand needs, as well as the predivorce standard of living and relatively short-term nature ofthe award, we perceive no basis upon which to disturb Supreme Court's award ofmaintenance. Nor do we discern any abuse of the court's considerable discretion in thecounsel fee award to the wife in view of, among other things, the disparity in the parties'earning abilities and the extent of the legal services provided (see Schwalb v Schwalb, 50AD3d 1206, 1210-1211 [2008]; Howard v Howard, 45 AD3d 944, 945-946 [2007]).
The parties' remaining contentions have been considered and are unavailing.
Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that thejudgment is modified, on the law and the facts, without costs, by reversing so muchthereof as (1) awarded defendant 50% of the $14,702.76 appreciation of plaintiff's IBMpension plan and (2) failed to award defendant any portion of the IBM stock purchasedby plaintiff during the marriage; award defendant $14,702.76, representing 50% of theincrease in plaintiff's IBM pension plan, and $7,823.83, representing 50% of the value ofplaintiff's IBM stock purchased during the marriage; and, as so modified, affirmed.