New York Family Law Blog
NY Slip Op 00205
January 11, 2017
Decision
This case is an appeal by the defendant regrading parts of a divorce judgment. In the decision the court ordered an equitable distribution of marital assets and awarded the defendant maintenance.
The plaintiff owned three properties before marriage, but changed to marital property after they wed. In 2009, the plaintiff brought an action for divorce. A trial was held on the issues around the equitable distribution, attorney fees and maintenance. In the final decision, the court awarded $1,023,500 with a lump sum due of $180,000 and the remaining amount earning 3% interest. Monthly installments of $5,000 were to start three years after the divorce.
The defendant was awarded maintenance of $6,000 per month for 3 years, payable immediately, and was also to receive a percentage of the couple’s real estate interests. The defendant appeals and the court affirms.
The court said that equitable distribution and equity don’t necessarily mean the same thing (Michaelessi v. Micahelessi 59 AD 688, 689, Evans v Evans 57 AD3d 718, 719; Greene v. Greene 25 AD2d 572. Each case of equitable distribution is the circumstances of the case (Domestic Relations Law 236 [B][5][d]; Hotterman v Hotterman 3 NY3d 1,7). Some of the things that the court will look at in making a determination are current property and income of each party, length of the marriage, health of the parties, loss of pension and inheritance, any contribution made for martial property to name a few (Taylor v Taylor 140 AD3d 944, 945-946, Domestic Relations Law 263 [B][5][d], Halley v Boyce 108 AD3d 503, 504.
The court has broad discretion in deciding what is equitable. The decision should be changed unless there are obvious inequities (Scher v Scher 91 AD3d 842, 846-847; Schwartz v Schwartz 67 AD 989, Aloi v Simoni 82 AD3d 683,685. When the decision has been made after a nonjury trial the credibility of a witness carries more weight on appeal (Scher v Scher 91 AD3d 847).
In consideration of Domestic Relations Law 236[B][5][d] the court didn’t err in its decision. The decision actually brought balance to the plaintiffs nonliquid assets. They were correct in delaying the installment payments, as well as charging the 3% interest (rather than 9%) (Hamroff v Hamroff 35 AD3d 365). The court was correct in determining appreciation by dividing it in two, which reflected the ½ interest of the defendant’s (Domestic Relations Law 236[b][1][3].
The details of spousal maintenance are up to the discretion of the court in light of each case’s unique facts (Massirman v Massirman 78 AD3d 1021, 1022. The court loo9ks at the future earning capacity, health and ability of the party to be self-supporting (Gordon v Gordon 113 AD 3d 654-655).
The defendant waived any claim as to bias by the referee regarding the issue raised by the trial court (Shen v Shen 21 AD3d 1078). The court said that absent a legal definition via Judiciary Law 14, the trial court judge has the final word (Ashmore v Ashmore 92 AD3d 817). Recusal is only appropriate where there is a substantial, direct and pecuniary interest (Ashmore v Ashmore 92 AD3d 820). Here, the defendant didn’t claim that there was a disqualifying relationship under Judicial Law 14.
The term equitable distribution is the principal that guides the division of martial property in New York during a divorce. This concept is governed by Domestic Relations Law Section 236B if the divorce was filed after July 19, 1980. This statute is considered to be the starting point, and is then subject to clarification by New York divorce cases, which has expanded its meaning in many ways.
Prior to the enactment of this law, New York was considered a common-law property state. Then, in the event of a divorce, the property simply went to the party who held title. Only the wife could receive spousal support. It was never available to the husband. Also, if the husband could prove that the divorce was the wife’s “fault” she would be unable to receive spousal support at all.
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