Cuomo v. Moss

199 A.D.3d 635

157 N.Y.S.3d 475

Todd CUOMO, respondent,

v.Maxine MOSS, appellant.

2019–06597

Index No. 5719/17

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

Submitted—October 12, 2021

November 3, 2021

J. Douglas Barics, Commack, NY, for appellant.

Sparacino & Sparacino, PLLC, Northport, NY (Jessica D. Sparacino of counsel), for respondent.

HECTOR D. LASALLE, P.J., LEONARD B. AUSTIN, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (Carol MacKenzie, J.), dated April 15, 2019. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated October 9, 2018, made after a nonjury trial, (1) awarded the plaintiff 50% of the defendant's interest in the marital residence, (2) declined to award the defendant a credit for payments made toward a home equity line of credit, (3) awarded the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence, and (4) awarded the plaintiff 1% of the value of the defendant's retirement accounts.

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence; as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.

The parties were married on October 5, 1996, and have no children. On February 27, 1997, the defendant and the plaintiff's mother each acquired a one-half interest in certain real property in Suffolk County where the parties lived together (hereinafter the marital residence). The parties both made payments toward the mortgage on the marital residence until 2011, when the defendant left the marital residence to live in Tennessee for a job. After the defendant left the marital residence, the plaintiff solely paid the remaining balance due on the mortgage in the sum of $68,000. Also during the marriage, the defendant obtained a home equity line of credit (hereinafter HELOC), which she solely paid after leaving the marital residence in 2011.

In November 2017, the plaintiff commenced this action for a divorce and ancillary relief. The Supreme Court held a nonjury trial in October 2018, inter alia, on the issue of equitable distribution. On April 15, 2019, the court issued a judgment of divorce, upon a decision after trial, which, inter alia, (1) awarded the plaintiff 50% of the defendant's interest in the marital residence, (2) declined to award the defendant a credit for payments she made toward the HELOC, (3) awarded the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence, and (4) awarded the plaintiff 1% of the value of the defendant's retirement accounts. The defendant appeals.

Contrary to the Supreme Court's determination, the parties did not stipulate at trial that "they would share equally" the defendant's one-half interest in the marital residence. Nevertheless, we decline to disturb the award to the plaintiff of 50% of the defendant's one-half interest in the marital residence. "Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" ( Ferrante v. Ferrante, 186 A.D.3d 566, 568, 128 N.Y.S.3d 590 [internal quotation marks omitted]). Here, the defendant failed to...