Miszko v. Miszko

163 A.D.3d 1204

81 N.Y.S.3d 617

Susan E. MISZKO, Respondent,

v.Michael MISZKO Jr., Appellant.

525199

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

Calendar Date: June 7, 2018

Decided and Entered: July 12, 2018

Steven H. Klein & Associates, PC, Poughkeepsie (Steven H. Klein of counsel), for appellant.

Jay A. Kaplan PC, Kingston (Jay A. Kaplan of counsel), for respondent.

Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.

MEMORANDUM AND ORDER

Devine, J.

Appeal from a judgment of the Supreme Court (Work, J.), entered December 23, 2016 in Ulster County, ordering, among other things, equitable distribution of the parties' marital property, upon two decisions of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1970 and have no unemancipated children. The wife commenced an action for divorce in 2011 that alleged an irretrievable breakdown in the marriage, and there was no dispute that such a breakdown had occurred (see Domestic Relations Law § 170[7] ). Supreme Court conducted a nonjury trial on the issues of equitable distribution and maintenance. Thereafter, Supreme Court issued two orders that resolved disputes over the status of certain assets and detailed its distributive and maintenance awards. Supreme Court issued a judgment of divorce that incorporated the terms of those orders, and the husband appeals.

We affirm. The husband challenges a number of aspects of Supreme Court's equitable distribution award. In that regard, "while the method of equitable distribution of marital property is properly a matter within the trial court's discretion, the initial determination of whether a particular asset is marital or separate property is a question of law" ( DeJesus v. DeJesus, 90 N.Y.2d 643, 647, 665 N.Y.S.2d 36, 687 N.E.2d 1319 [1997] ; accord Mula v. Mula, 131 A.D.3d 1296, 1299, 16 N.Y.S.3d 868 [2015] ). Once that initial determination is made, "absent an abuse of ... discretion or a failure to consider the requisite statutory factors, this Court will not disturb [the subsequent] determination" as to the distribution of the marital assets ( Gordon–Medley v. Medley, 160 A.D.3d 1146, 1148, 74 N.Y.S.3d 412 [2018] ).

First, the husband argues that Supreme Court erred in categorizing his accidental disability retirement pension as marital property. Notwithstanding the husband's unpersuasive attempts to challenge the rule, it is well-settled that "compensation for personal injuries constitutes separate property, [but] the party claiming that a portion of a disability pension is separate property ‘bears the burden of demonstrating what portion of the pension reflects compensation for personal injuries, as opposed to deferred compensation’ related to the length of employment that the employee would have been entitled to receive regardless of the injury" ( Montero v. McFarland, 70 A.D.3d 1282, 1283–1284, 895 N.Y.S.2d 257 [2010] [internal citation omitted], quoting Allwell v. Allwell, 277 A.D.2d 789, 790, 716 N.Y.S.2d 741 [2000] ; see Dolan v. Dolan, 78 N.Y.2d 463, 468, 577 N.Y.S.2d 195, 583 N.E.2d 908 [1991] ; Peek v. Peek, 301 A.D.2d 201, 203, 751 N.Y.S.2d 124 [2002], lv denied 100 N.Y.2d 513, 767 N.Y.S.2d 394, 799 N.E.2d 617 [2003] ). The husband is a tier 1 member of the New York State Police and Fire Retirement System and, upon his retirement in 1990, had almost 18 years of credited service. Inasmuch as the parties were married in 1970, these vested pension rights were largely marital property (see Majauskas v. Majauskas, 61 N.Y.2d 481, 491–492, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). The husband failed to meet his burden of showing what portion of his pension was attributable to his injuries as opposed to these vested pension rights, instead advancing the legally and factually unsupported claim "that the whole amount ... is a disability benefit" ( Allwell v. Allwell, 277 A.D.2d at 790–791, 716 N.Y.S.2d 741 ). As such, Supreme Court correctly treated the entire pension as a marital asset (see Montero v. McFarland, 70 A.D.3d at 1284, 895 N.Y.S.2d 257 ; Allwell v. Allwell, 277 A.D.2d at 790–791, 716 N.Y.S.2d 741 ).

Supreme Court also correctly determined that an investment account and an interest in certain real property were the wife's separate property. The wife and her sister inherited funds from their aunt, the wife placed her share in an investment account that was never placed in the husband's name and the husband failed to show that this separate property was later transmuted into marital property via a commingling of marital funds (see Domestic Relations Law § 236[B][1][d][1] ; Mula v. Mula, 131 A.D.3d at 1299, 16 N.Y.S.3d 868 ). The wife and her sister similarly inherited their mother's residence, and the husband failed to demonstrate "that any increase in the value of [that] separate property was due at least in part to [his] contributions or efforts" ( Robinson v. Robinson, 133 A.D.3d 1185, 1187, 21 N.Y.S.3d 392 [2015] ; see Domestic Relations Law § 236[B][1][d][3] ; Owens v. Owens, 107 A.D.3d 1171, 1173, 967 N.Y.S.2d 465 [2013] ). The fact that rental income and expenses relating to that property were reported on the parties' joint tax return likewise fails to "transmute the separate property to marital property" ( Giannuzzi v. Kearney, 160 A.D.3d 1079, 1081, 74 N.Y.S.3d 123 [2018] ). Accordingly, Supreme Court properly determined that both the investment account and real property interest were the wife's separate property.

As for the distribution of the marital assets, Supreme Court considered the factors set forth in Domestic Relations Law § 236(B)(5)(d) and directed a near equal division of those assets. Supreme Court focused upon the very long duration of the marriage, the equivalent ages of the parties, the substantial financial and nonfinancial contributions made by both, and the career sacrifices made by the wife to raise the parties' children while the husband worked full time and later attended law school. Supreme Court further rejected the husband's claim that the wife had intentionally attempted to shield her separate assets from him. "Substantial deference is accorded to the trial court's determination regarding equitable distribution so long as the requisite statutory factors were considered"—which, contrary to the husband's contention, they were—and we perceive no abuse of discretion in the equal division of assets ( Shapiro v. Shapiro, 91 A.D.3d 1094, 1095, 937 N.Y.S.2d 368 [2012] [citations omitted]; accord Halse v. Halse, 93 A.D.3d 1003, 1004, 940 N.Y.S.2d 353 [2012] ).¹

Lastly, Supreme Court did not err by awarding nondurational maintenance to the wife in an amount...