Shvalb v. Rubinshtein

204 A.D.3d 1059

167 N.Y.S.3d 163

Yan SHVALB, respondent,

v.Marina RUBINSHTEIN, appellant.

2019–05937

Index No. 50262/16

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

Submitted—January 4, 2022

April 27, 2022

Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for appellant.

Kleyman Law Firm, New York, NY (Catherine McKinney of counsel), for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Richmond County ( Robert W. Soos, Ct. Atty. Ref.), dated February 5, 2019. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated November 26, 2018, made after a nonjury trial, (1) in effect, awarded the plaintiff 50% of the appreciation of the value of the marital residence located in Staten Island, (2) failed to award the defendant a credit for payments allegedly made toward the parties’ apartment located in North Miami Beach, Florida, (3) failed to award the defendant a credit for a loan allegedly obtained from her father to purchase a condominium located in Sunny Isles Beach, Florida, (4) failed to award the defendant a credit for the plaintiff's use of certain stock obtained during the marriage through the plaintiff's employment with Apple, Inc., (5) failed to determine that the plaintiff wastefully dissipated marital assets, (6) distributed the parties’ joint AXA account and directed the parties to utilize the funds therein to pay their counsel fees, (7) imputed income to the plaintiff in the sum of $65,000 per year in calculating his child support obligation, (8) failed to award child support to the defendant retroactive to the date of commencement of the action, (9) failed to direct the plaintiff to obtain and maintain a life insurance policy for the benefit of the parties’ children until payment of child support is completed, and (10) directed the plaintiff to pay child support and add-on expenses until the parties’ children reach the age of 18 or are otherwise emancipated.

ORDERED that the judgment is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof directing the plaintiff to pay child support and add-on expenses until the parties’ children reach the age of 18 or are otherwise emancipated, and substituting therefor a provision directing the plaintiff to pay child support and add-on expenses until the children reach the age of 21 or are otherwise emancipated, and (2) by adding thereto a provision directing the plaintiff to obtain and maintain a life insurance policy for the benefit of the parties’ children until payment of child support is completed, in an amount sufficient to secure that obligation; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for a calculation of the appropriate amount of life insurance to be obtained by the plaintiff to secure the payment of his child support obligation.

The parties were married in 2007 and have two children together, both born in 2010. A nonjury trial was held on the issues of equitable distribution, child support, and counsel fees.

" ‘ Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors’ " ( Fairchild v. Fairchild, 149 A.D.3d 810, 810–811, 51 N.Y.S.3d 613, quoting Fields v. Fields, 15 N.Y.3d 158, 170, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ; see Domestic Relations Law § 236[B][5][c], [d] ). " ‘A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances’ " ( Fairchild v. Fairchild, 149 A.D.3d at 811, 51 N.Y.S.3d 613, quoting Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 420, 881 N.Y.S.2d 369, 909 N.E.2d 62 ) and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed (see Kotsakis v. Kotsakis, 169 A.D.3d 1023, 1023, 92 N.Y.S.3d 901 ).

The Supreme Court properly determined that the marital residence located in Staten Island was the defendant's separate property, since she purchased it prior to the marriage (see Carniol v. Carniol, 306 A.D.2d 366, 368, 762 N.Y.S.2d 619 ; Sidhu v. Sidhu, 304 A.D.2d 816, 817, 759 N.Y.S.2d 134 ).

"Under the equitable distribution statute, separate property is defined to include an increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" ( Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 ; see Domestic Relations Law § 236[B][1][d][3] ). "Thus, any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. This includes any direct contributions to the appreciation, such as when the nontitled spouse makes financial contributions towards the property, as well as when the nontitled spouse makes direct nonfinancial contributions, such as by personally maintaining, making improvements to, or renovating a marital residence" ( Johnson v. Chapin, 12 N.Y.3d at 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [citation omitted]; see Embury v. Embury, 49 A.D.3d 802, 804, 854 N.Y.S.2d 502 ). In addition, under certain circumstances, appreciation should, to the extent it was produced by efforts of the titled spouse, be considered a product of the marital partnership and hence, marital property (see Zaretsky v. Zaretsky, 66 A.D.3d 885, 888, 888 N.Y.S.2d 84 ). However, "the appreciation remains separate property if it resulted purely from market forces, as opposed to the titled spouse's efforts" ( id. at 888, 888 N.Y.S.2d 84 ). Here, the Supreme Court properly determined that the marital residence appreciated in value from the financial contributions of the plaintiff and appropriately awarded him 50% of the appreciated value.

Contrary to the defendant's contention, the Supreme Court's determination that she failed to substantiate any claim for a credit or offset for the expenses associated with the parties’ apartment located in North Miami Beach, Florida, is supported by the record.

Further, there is no basis to disturb the Supreme Court's determination as to the credibility of the witnesses regarding an alleged loan made by the defendant's father for, inter alia, the parties’ condominium located in Sunny Isles Beach, Florida, and the parties’ repayments of same (see Patete v. Rodriguez, 109 A.D.3d 595, 598, 971 N.Y.S.2d 109 ).

The record does not support the defendant's contentions that the plaintiff used funds from the sale of certain Apple stock for his personal use, or that he wastefully dissipated marital assets (see Domestic Relation Law § 236[B][5][d][12] ; Spencer–Forrest v. Forrest, 159 A.D.3d 762, 765, 71 N.Y.S.3d 622 ; Epstein v. Messner, 73 A.D.3d 843, 846, 900 N.Y.S.2d 454 ).

Contrary to the defendant's contention, the Supreme Court did not err in determining that the parties’ joint AXA bank account was marital property subject to distribution,...