Offices of Kenneth J. Weinstein, P.C., Garden City, NY
(Michael J. Langer of counsel), for appellant.
M. LEVENTHAL, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the plaintiff from stated portions of a judgment of
divorce of the Supreme Court, Queens County (Pam Jackman
Brown, J.), entered April 13, 2015. The judgment, upon a
decision of that court dated May 16, 2014, made after a
nonjury trial, inter alia, failed to impute income to the
defendant in determining his child support obligation, failed
to award the plaintiff maintenance, and made an equitable
distribution of the parties' marital assets.
that the judgment of divorce is modified, on the facts, by
deleting the provision thereof awarding the defendant two
properties located in Franklin, New York, as his separate
property, and substituting therefor a provision awarding the
plaintiff an amount equal to one-half the value of those two
properties located in Franklin, New York; as so modified, the
judgment is affirmed insofar as appealed from, without costs
or disbursements, and the matter is remitted to the Supreme
Court, Queens County, for a determination of the value of the
two properties located in Franklin, New York, and the amount
the plaintiff is entitled to receive equal to one-half that
value, and for the entry of an appropriate amended judgment
parties were married in January 1990 and have one child, who
was born in 2001. During the marriage, the defendant owned a
business that was involved in the installation of appliances
for a major retail chain. The plaintiff has been disabled
since 1995 and received disability benefits, which, at the
time of the trial, amounted to $1, 800 per month.
April 2008, the plaintiff commenced this action for a divorce
and ancillary relief. In October 2008, the defendant sold the
assets of his business. Thereafter, the defendant began
receiving disability benefits, which, at the time of trial,
amounted to $2, 164 per month. The parties continued to live
together until November 2010, when the defendant vacated the
marital residence pursuant to an order of protection.
equity line of credit (hereinafter HELOC) was opened in both
parties' names in the amount of $200, 000, on July 11,
2005, three years prior to the commencement of this action.
The available balance at the time of trial was $500. The
defendant testified at trial that the funds were used to pay
was adduced at trial that during the marriage, the defendant
acquired, in his sole name, an interest in two properties
located in Franklin, New York, one on Buck Horn Farm Road and
one on Olive Whitbeck Road (hereinafter together the Franklin
properties), from a corporation owned by his family. In
addition, the plaintiff testified that the parties had
purchased certain timeshare interests in property, including
a timeshare referred to as Week Number 5 that remained in the
name of the defendant's brother at the time of trial.
the trial, the Supreme Court determined, among other things,
that: (1) the defendant's child support obligation would
be based upon his monthly disability payments of $2, 164, and
no additional income would be imputed to him; (2) the parties
were equally responsible for the repayment of $166, 500 of
the HELOC loan, as the debt was incurred during the marriage,
but the defendant was directed to repay $33, 500 of the HELOC
loan from his proceeds of the sale of the marital residence
as restitution for using HELOC funds for his counsel fees;
(3) the Franklin properties and the Week Number 5 timeshare
were the defendant's separate property; and (4) the
plaintiff was not entitled to maintenance. The plaintiff
appeals from stated portions of the judgment of divorce.
factfinder's determination concerning the imputation of
income to an obligor spouse is almost always based on the
resolution of credibility, and therefore, is given great
deference on appeal" (Khaimova v Mosheyev, 57
A.D.3d 737, 737-738; see Matter of Strella v Ferro,
42 A.D.3d 544, 545-546). Contrary to the plaintiff's
contentions, the facts of this case did not warrant
imputation of income to the defendant in determining his
child support obligation.
the plaintiff failed to meet her burden of establishing that
the defendant dissipated marital assets (see Raynor v
Raynor, 68 A.D.3d 835, 838; Solomon v Solomon,
307 A.D.2d 558, 561; Strang v Strang, 222 A.D.2d
975, 978; Reidy v Reidy, 136 A.D.2d 614, 615). Thus,
the Supreme Court properly directed that the parties were
equally responsible for the repayment of the HELOC loan, with
the exception of $33, 500 that the defendant used to pay his
counsel fees (see Sawin v Sawin, 128 A.D.3d 663,
665; McCoy v McCoy, 117 A.D.3d 806, 809-810).
amount and duration of maintenance is a matter committed to
the sound discretion of the trial court, and each case must
be determined on its unique facts (see Gafycz v
Gafycz, 148 A.D.3d 679; Carr-Harris v
Carr-Harris, 98 A.D.3d 548, 551; Mazzone v
Mazzone, 290 A.D.2d 495, 496). The factors to consider
in awarding maintenance include "the standard of living
of the parties during the marriage, the income and property
of the parties, the distribution of marital property, the
duration of the marriage, the health of the parties, the
present and future earning capacity of both parties, the
ability of the party seeking maintenance to become
self-supporting, and the reduced or lost lifetime earning
capacity of the party seeking maintenance"
(Carr-Harris v Carr-Harris, 98 A.D.3d at 551). In
light of the Supreme Court's analysis of these factors
and its assessment of the credibility of the parties, we
decline to disturb its determination that the plaintiff was
not entitled to maintenance.
Franklin properties, which the defendant acquired in his sole
name during the marriage, are presumed to be marital
property, and that presumption was not rebutted (see
Rosenberg v Rosenberg, 145 A.D.3d 1052, 1054-1055;
Bernard v Bernbard, 126 A.D.3d 658, 659).
Accordingly, the plaintiff is entitled to a distributive
award equal to one-half the value of those properties, which
may require the appointment of a neutral appraiser paid for
by one or both parties (see e.g. McDicken v
McDicken, 109 A.D.2d 734, 735).
there was no evidence that the Week Number 5 timeshare was
marital property, as the deed remained in the defendant's
brother's name at the time of trial, and there was no
evidence that it was purchased ...