| Lamparillo v Lamparillo |
| 2015 NY Slip Op 05647 [130 AD3d 580] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Leigh Ann Lamparillo, Respondent, v GregoryLamparillo, Appellant. |
Levinson, Reineke & Ornstien, P.C., Central Valley, N.Y. (Justin Kimple ofcounsel), for appellant.
Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), forrespondent.
Motion by the defendant for leave to reargue an appeal from a judgment of theSupreme Court, Orange County, dated April 16, 2012, which was determined by decisionand order of this Court dated April 23, 2014.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated April 23, 2014 (Lamparillo v Lamparillo, 116 AD3d 924 [2014]), isrecalled and vacated, and the following decision and order is substituted therefor:
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.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,by deleting the provision thereof directing the sale of the marital residence; as somodified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Orange County, forfurther proceedings in accordance herewith, and for the entry of an appropriate amendedjudgment thereafter.
[*2] When determining amaintenance obligation, "[w]here a party's account of his or her finances is notbelievable, the court may impute a true or potential income higher than that alleged" (DiPalma v DiPalma, 112AD3d 663, 664 [2013]; seeKessler v Kessler, 118 AD3d 946 [2014]). Here, the Supreme Court providentlyexercised its discretion in imputing income to the defendant based on, inter alia,information he provided in a bankruptcy petition (see Greisman v Greisman, 98 AD3d 1079, 1080 [2012]; Duffy v Duffy, 84 AD3d1151, 1152 [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"(DiBlasi v DiBlasi, 48AD3d 403, 404 [2008] [internal quotation marks omitted]; see Wortman v Wortman, 11AD3d 604, 606 [2004]). In view of the relevant factors, including the income of theparties, the length of the marriage, the present and future earning capacity of the parties,and the ability of the party seeking maintenance to become self-supporting, the SupremeCourt providently exercised its discretion in awarding the plaintiff weekly maintenancein the sum of $550 for a period of three years (see Domestic Relations Law§ 236 [B] [6] [a]; Duffy v Duffy, 84 AD3d at 1152; Groesbeck v Groesbeck, 51AD3d 722, 723 [2008]; Schwalb v Schwalb, 50 AD3d 1206, 1210 [2008]).
Contrary to the defendant's contention, the Supreme Court properly awarded him aseparate property credit of only $180,000, instead of the $265,000 credit that herequested. The trial evidence regarding the contributions of alleged separate property thathe made toward the construction of the marital residence failed to support the higherfigure (see McLoughlin vMcLoughlin, 63 AD3d 1017, 1019 [2009]; Romano v Romano, 40 AD3d 837, 838 [2007]; Murphy v Murphy, 4 AD3d460, 461 [2004]). Moreover, the court did not act improperly in directing that thecredit be satisfied by the defendant's parents' repayment to him of a $180,000 loan madeto them by the 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 the commencement of this action, as the plaintiff demonstrated that itconstituted marital debt (seeAlleva v Alleva, 112 AD3d 567, 569 [2013]; Rodriguez v Rodriguez, 70AD3d 799, 802 [2010]).
Contrary to the defendant's contention, the Supreme Court providently awarded theplaintiff $7,000 for one half the value of the furnishings in the marital residence andcertain 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, 309 AD2d825, 826 [2003]). Accordingly, in the event that the parties have not yet entered into acontract for the sale of the marital residence to a third party, the defendant should beafforded an option to purchase the plaintiff's interest. In order to exercise the option topurchase the plaintiff's interest, the defendant shall, within three months after serviceupon him of a copy of this decision and order with notice of entry, pay off the remainingbalances of all existing marital debts on the property, including the mortgage and thehome equity loan. Upon her receipt of proof of satisfaction of these debts, the plaintiffshall convey her interest in the marital residence to the defendant, and the Supreme Courtshall recalculate the equitable distribution award and make appropriate adjustments,taking into account the exercise of the option and satisfaction of the marital debts on theproperty and the conveyance of title. In the event that the option to purchase is notsuccessfully exercised by the defendant within the time allotted, the marital residenceshall be sold in accordance with the terms set forth in the judgment appealed from.Within 30 days of service upon him of a copy of this decision and order with notice ofentry, the defendant shall notify the Supreme Court and the plaintiff's counsel, in writing,whether he intends to exercise the option. In the event the defendant fails to do so, heshall be deemed to have waived the option (see Aebly v Lally, 112 AD3d at563-564). Mastro, J.P., Chambers, Austin and Miller, JJ., concur.