Allen v. Allen

179 A.D.3d 1318

117 N.Y.S.3d 736

Robin M. ALLEN, Respondent,

v.Bryan V. ALLEN, Appellant.

526463

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 18, 2019

Decided and Entered: January 16, 2020

Alderman and Alderman, Syracuse (Richard B. Alderman of counsel), for appellant.

Barton Law Firm, LLP, Elmira (Christopher A. Barton of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1999 and have four children (born in 1998, 2000 and 2001). After the wife commenced this action for divorce in January 2013, an interim order of child support and maintenance was put in place by Family Court. A trial was thereafter held in June 2015 in Supreme Court, following which the court issued a judgment of divorce that, as relevant here, awarded the wife a distributive award from the appreciation of the marital residence, ordered the husband to pay the wife maintenance until their youngest child reaches 18 years old, set maintenance arrearages and awarded the wife child support. The court further found that the wife owed to the husband a child support liability, as he had sole custody of the parties' oldest child. The court ordered, however, that this payment be held in abeyance until the husband paid maintenance arrearages to the wife. Subsequently, the court issued an order, after a hearing, directing the husband to pay counsel fees to the wife. The husband appeals.

We turn first to the husband's contention that Supreme Court erred in awarding the wife a distributive award of $25,200 from the appreciation of the marital residence.¹ "It is well established that equitable distribution of marital property does not necessarily mean equal, and Supreme Court has substantial discretion in fashioning an award of equitable distribution" ( Roma v. Roma, 140 A.D.3d 1242, 1243, 32 N.Y.S.3d 703 [2016] [internal quotation marks and citations omitted] ). As relevant here, real property purchased prior to the marriage constitutes separate property not subject to equitable distribution, as "a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse" ( Macaluso v. Macaluso, 124 A.D.3d 959, 961–962, 1 N.Y.S.3d 464 [2015] ; see Prokopov v. Doskotch, 166 A.D.3d 1408, 1410, 89 N.Y.S.3d 400 [2018] ). However, "separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse's separate property during the marriage, which appreciation would be subject to equitable distribution" ( Ceravolo v. DeSantis, 125 A.D.3d 113, 117, 1 N.Y.S.3d 468 [2015] ; see Domestic Relations Law § 236[B][1][d][3] ; Biagiotti v. Biagiotti, 97 A.D.3d 941, 943, 948 N.Y.S.2d 445 [2012] ). The nontitled spouse bears "the burden of establishing that any increase in the value of the separate property was due at least in part to [his or] her ... efforts" ( Robinson v. Robinson, 133 A.D.3d 1185, 1187, 21 N.Y.S.3d 392 [2015] [emphasis added]; see Arthur v. Arthur, 148 A.D.3d 1254, 1255, 48 N.Y.S.3d 813 [2017] ).

The record reveals that the husband purchased the house approximately three months prior to the marriage, and therefore it is the husband's separate property (see Ceravolo v. DeSantis, 125 A.D.3d at 116, 1 N.Y.S.3d 468 ; Macaluso v. Macaluso, 124 A.D.3d at 961–962, 1 N.Y.S.3d 464 ). Thus, our inquiry turns to whether Supreme Court properly awarded the wife equitable distribution from the appreciation of this asset. We find that it did. At trial, the wife offered unrebutted testimony that she and the husband nearly doubled the size of the house while they lived there together. She also testified that she worked to improve the house after the marriage, including painting, landscaping and redoing the hardwood floors, roof and siding of the house. The husband did not challenge this testimony. The record reveals that the husband purchased the house for $57,000 and he and the wife agree that the value of the marital residence, at the time of trial, was $120,000. Given the wife's unrebutted testimony regarding her contributions, it was not error for Supreme Court to find that the house's "appreciation is due to the contributions or efforts of the nontitled spouse" ( Biagiotti v. Biagiotti, 97 A.D.3d at 943, 948 N.Y.S.2d 445 ; see Prokopov v. Doskotch, 166 A.D.3d at 1410, 89 N.Y.S.3d 400 ). Nor do we discern any error in the amount of the distributive award. Despite the husband's contentions to the contrary,² it is clear from the record that Supreme Court took into account all of the necessary factors and, as such, we defer to the court's findings of fact and credibility and affirm this distributive award (see Arthur v. Arthur, 148 A.D.3d at 1255, 48 N.Y.S.3d 813 ; Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] ).

The husband's contentions regarding maintenance awarded to the wife warrant little discussion.³ First, the husband asserts that the duration of the maintenance, approximately six years and eight months, was an abuse of discretion and instead argues that an award of maintenance for four years would have been "more appropriate." The husband, however, fails to cite to any law or facts supporting this conclusory assertion. In any event, inasmuch as Supreme Court properly considered all of the relevant statutory factors, as well as the parties' predivorce standard of living, we discern no abuse of discretion in either the amount or the duration of maintenance awarded and, as such, decline to disturb it (see Pfister v. Pfister, 146 A.D.3d 1135, 1137–1138, 47 N.Y.S.3d 140 [2017] ; Cervoni v. Cervoni, 141 A.D.3d 918, 919–920, 34 N.Y.S.3d 792 [2016] ). Second, the husband contends that Supreme Court erred in failing to provide him a credit against his child support and maintenance obligations because he paid for the wife's shelter costs, including property taxes, homeowner's insurance and electricity bills while she and the children resided in the marital residence. However, because the husband was already contractually obligated to pay these expenses on his separate property, and a party in a dispute over child support or maintenance cannot get credit for performing their own pre-existing legal obligations to third parties, this contention has no merit (see Arthur v. Arthur, 148 A.D.3d at 1257, 48 N.Y.S.3d 813 ; McKay v. Groesbeck, 117 A.D.3d 810, 811, 985 N.Y.S.2d 686 [2014] ).

We turn next to the respective child support obligations of the parties. "The Child Support Standards Act (see Domestic Relations Law § 240[1–b] [hereinafter CSSA] ) ‘provides a precisely articulated, three-step method for determining child support. The first step requires the computation of combined parental income.... The court next multiplies the combined parental income figure ... by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation’ " ( Johnson v. Johnson, 172 A.D.3d 1654, 1655, 101 N.Y.S.3d 497 [2019], quoting Holterman v. Holterman, 3 N.Y.3d 1, 10–11, 781 N.Y.S.2d 458, 814 N.E.2d 765 [2004] ). After completing the three-step formula, the statute allows the court to deviate from the basic child support obligation upon proof that the award would be "unjust or inappropriate" ( Domestic Relations Law § 240[1–b][f] ; see Bast v. Rossoff, 91 N.Y.2d 723, 727, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998] ; Smith v. Smith, 116 A.D.3d 1139, 1141, 983 N.Y.S.2d 341 [2014] ).

The husband has primary custody of the parties' oldest child and the parties share custody of the three younger children on an alternating week schedule. Supreme Court, applying the statutory framework, found that the wife's child support obligation to the husband for the oldest child is $5,100 annually. The court also found that the husband's child support obligation due to the mother is $23,464 annually. The court did not deviate from the guidelines as to either parties' obligations, which the husband argues was error based upon the shared custody arrangement for the three younger children, as well as his agreement to assume sole responsibility for the children's health insurance and unreimbursed health care expenses. We disagree. Initially, it is belied by the record that the husband is solely responsible for the children's unreimbursed health care expenses. In fact, the court ordered that any noncovered health care expenses be shared pro rata, with 75% to be paid by the husband and 25% to be paid by the wife. Moreover, the husband testified at trial that he shared the payment of medical bills with the wife and even conceded that he did not pay some of these bills. As to the shared custody arrangement of the parties, the court did not err in applying the three-step formula under the CSSA, as " ‘[s]hared custody arrangements do not alter the scope and methodology of [the] CSSA’ " ( Baraby v. Baraby, 250 A.D.2d 201, 203, 681 N.Y.S.2d 826 [1998], quoting Bast v. Rossoff, 91 N.Y.2d 723, 732, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998] ). In cases such as the one present here, where neither parent "can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the noncustodial parent for the purpose...