Submitted - May 11, 2017
Antoinette L. Williams, P.C., Mount Vernon, NY, for
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE
BETSY BARROS, JJ.
DECISION & ORDER
by the defendant from stated portions of a judgment of
divorce of the Supreme Court, Westchester County (Susan
Capeci, J.), entered December 9, 2014. The judgment, upon a
decision of that court entered October 20, 2014, made after a
nonjury trial, inter alia, made an equitable distribution of
the parties' property.
that on the Court's own motion, the notice of appeal from
the decision is deemed to be a premature notice of appeal
from the judgment (see CPLR 552O[c]); and it is
further, ORDERED that the judgment is affirmed insofar as
appealed from, without costs or disbursements.
parties were married on July 17, 1994. There are two children
of the marriage. The plaintiff commenced this action for a
divorce and ancillary relief on May 12, 2009. The parties
came to an agreement regarding child custody, maintenance,
and child support. Thereafter, the Supreme Court conducted a
nonjury trial on issues of equitable distribution. Following
the trial, the court issued a decision finding, among other
things, that each party was entitled to a 50% share of the
net proceeds from the sale of the marital residence, but the
plaintiff was entitled to a $14, 805 credit for payments that
he made during the action which reduced the mortgage
principal; each party was entitled to a 50% share of the
value of the plaintiffs 401K account in accordance with
Majauskas v Majauskas (61 N.Y.2d 481); and the
defendant was responsible for 50% of the total amount of
marital debt, payable to the plaintiff out of the
defendant's share of the net proceeds of the sale of the
marital residence. Thereafter, the court entered a judgment
of divorce upon the decision. The defendant appeals from
stated portions of the judgment of divorce.
to the defendant's contention, the plaintiff is entitled
to receive a credit against the proceeds of the sale of the
marital residence for the money that he paid to reduce the
balance of the mortgage during the pendency of the action
(see Goldman v Goldman, 131 A.D.3d 1107, 1108;
Le v Le, 82 A.D.3d 845, 845-846; Markopoulos v
Markopoulos, 274 A.D.2d 457). The plaintiff made these
payments without any contribution from the defendant (see
e.g. Freigang v Freigang, 256 A.D.2d 539, 540).
Where, as here, a party has paid the other party's share
of what proves to be marital debt, such as the mortgage,
taxes, and insurance on the marital residence, reimbursement
is required (see generally Scher v Scher, 91 A.D.3d
842, 846; Epstein v Messner, 73 A.D.3d 843, 845).
card debt incurred prior to the commencement of a matrimonial
action constitutes marital debt and should be equally shared
by the parties (see Lamparillo v Lamparillo, 130
A.D.3d 580, 582; Sawin v Sawin, 128 A.D.3d 663,
665-666; see also Diaz v Gonzalez, 115 A.D.3d 904,
906). Where, as here, the determination as to equitable
distribution has been made after a nonjury trial, the
evaluation of the credibility of the witnesses and the
proffered items of evidence is committed to the sound
discretion of the trial court, and its assessment of the
credibility of witnesses and evidence is afforded great
weight on appeal (see Turco v Turco, 117 A.D.3d 719,
722; Franco v Franco, 97 A.D.3d 785, 786;
Schwartz v Schwartz, 67 A.D.3d 989, 990). Here, the
Supreme Court providently exercised its discretion in finding
the defendant responsible for 50% of the marital debt, to be
paid from the defendant's share of the net proceeds of
the sale of the marital residence.
Supreme Court providently exercised its discretion in
directing, pursuant to the Majauskas formula, that
each party was entitled to a 50% share of the value of the
plaintiffs 401K account at the time of the commencement of
the action (see generally Heymann v Heymann, 102
A.D.3d 832, 833). The defendant's assertion that the
court failed to equitably distribute the plaintiffs deferred
compensation plans or acknowledge withdrawals made from his
IRA and 401K accounts is belied by the record.
defendant's remaining contention is without merit.
RIVERA, J.P., CHAMBERS, MALTESE and ...