Spencer-Forrest v. Forrest

159 A.D.3d 762

71 N.Y.S.3d 622

Maureen SPENCER–FORREST, respondent-appellant,

v.Charles J. FORREST, appellant-respondent.

2017–00836

Index No. 202197/12

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

Argued—January 29, 2018

March 7, 2018

Robert A. Ross, Northport, NY, for appellant-respondent.

C. Robinson & Associates, LLC, New York, N.Y. (W. Charles Robinson of counsel), for respondent-appellant.

SHERI S. ROMAN, J.P., SANDRA L. SGROI, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal and cross appeal from a judgment of divorce of the Supreme Court, Nassau County (Stacy D. Bennett, J.), entered November 30, 2016. The judgment of divorce, insofar as appealed from, awarded the plaintiff the sum of $30,000 for her interest in the marital residence, failed to provide the defendant with certain credits, and distributed certain property equally between the parties. The judgment of divorce, insofar as cross-appealed from, awarded the plaintiff the sum of only $30,000 for her interest in the marital residence, failed to sanction the defendant for removing certain items from a safe deposit box, and denied the plaintiff an award of maintenance.

ORDERED that the judgment of divorce is modified, on the law and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff the sum of $30,000 for her interest in the marital residence, and substituting therefor a provision awarding the plaintiff the sum of $122,500 for her interest in the marital residence; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The parties were married on March 31, 1984. There were no children of the marriage, but children from each of the parties' prior marriages resided with the parties in the marital residence during the children's respective minorities. Both parties were employed for the majority of the marriage, and the plaintiff provided care for the defendant's children, who were younger and resided in the marital residence longer than her children. The defendant purchased the marital residence prior to the marriage, and transferred the property to himself and the plaintiff as joint tenants in 1989. Other than the marital residence, the parties' assets were held in their respective names. Both parties contributed to the household expenses, although the defendant contributed a larger sum to household expenses and maintenance of the marital residence, and the plaintiff ceased financial contributions in 2006 or 2007, after she retired.

On August 6, 2012, the plaintiff commenced this action for a divorce and ancillary relief. The Supreme Court granted the plaintiff a divorce and held entry of the judgment in abeyance pending determination of the issues of equitable distribution and maintenance. The plaintiff was 68 years old and the defendant was 67 years old at the time of trial. Following trial, the court awarded the plaintiff 20% of the appreciation in the value of the marital residence from 1989 through the date of the commencement of the action and otherwise distributed the marital assets equally, aside from the parties' respective vehicles and personal property in their respective possession. The court declined to award the parties credits sought for assets allegedly secreted or wasted by the other party and denied the plaintiff an award of maintenance. The parties appeal and cross-appeal from stated portions of the judgment.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in equally distributing the marital assets other than the marital residence, the parties' respective vehicles, and personal property in their respective possession. There is a statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, "regardless of the form in which title is held" ( Domestic Relations Law § 236[B][1][c] ; see Domestic Relations Law § 236[B][1][d] ; Fields v. Fields, 15 N.Y.3d 158, 165, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ). The party seeking to overcome the presumption has the burden of proving that the property in dispute is separate property (see Nadasi v. Nadel–Nadasi, 153 A.D.3d 1346, 60 N.Y.S.3d 488 ; Marshall v. Marshall, 91 A.D.3d 610, 611, 937 N.Y.S.2d 253 ). Here, there was no written agreement to keep the parties' finances separate (cf. Domestic Relations Law § 236[B][1][d][4] ), and the court properly determined that both parties contributed to the marriage as spouse, parent, wage earner, or homemaker, such that equitable distribution of the marital assets held by each party was appropriate (see O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712 ; cf. Galvin v. Francis, 20 A.D.3d 550, 551, 799 N.Y.S.2d 547 ). While a small portion of the parties' retirement assets was earned prior to the marriage (see Mesholam v. Mesholam, 11 N.Y.3d 24, 29, 862 N.Y.S.2d 453, 892 N.E.2d 846 ), under the circumstances of this case, the court providently distributed the entirety of the parties' retirement assets. The parties stipulated to the values of the assets without delineating the separate property portion thereof, which, in light of the parties' similar employment and incomes prior to the marriage, would have been roughly equivalent (see Wesche v. Wesche, 77 A.D.3d 921, 923–924, 909 N.Y.S.2d 764 ).

"The trial court is vested with broad discretion in making an equitable distribution of marital property ... and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Gafycz v. Gafycz, 148 A.D.3d 679, 680, 48 N.Y.S.3d 464 [internal quotation marks omitted] ). "When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible; however, equitable distribution does not necessarily mean equal distribution" ( Davis v. O'Brien, 79 A.D.3d 695, 696, 912 N.Y.S.2d 644 ; see Repetti v. Repetti, 147 A.D.3d 1094, 1098, 47 N.Y.S.3d 447 ). Here, both parties contributed financially to this 28–year marriage, and the equal distribution of the financial marital assets was a provident exercise of the Supreme Court's discretion (see Scaramucci v. Scaramucci, 140 A.D.3d 848, 850, 33 N.Y.S.3d 377 ). The assets were properly valued by stipulation (see Wesche v. Wesche, 77 A.D.3d at 923–924, 909 N.Y.S.2d 764 ).

The Supreme Court providently exercised its discretion in declining to award the defendant credits related to the sale of certain real property in Queens, the plaintiff's liquidation of an...