appeals from the judgment of the Supreme Court, New York
County (Deborah A. Kaplan, J.), entered May 24, 2016,
granting, among other things, a 75%/25% division of the value
of the marital home.
Kantor, Davidoff, Mandelker, Twomey, Gallanty & Kersten,
P.C., New York (Matthew C. Kesten of counsel), for appellant.
Goldweber Epstein LLP, New York (Nina S. Epstein and Aimee L.
Davis of counsel), for respondent.
Tom, J.P., Angela M. Mazzarelli, Richard T. Andrias, Jeffrey
K. Oing, Anil C. Singh, JJ.
primary issue on this appeal is whether there can be an
unequal distribution of the marital home under the "just
and proper" standard set forth in Domestic Relations Law
§ 236(B)(5)(d)(14) where a spouse's criminal conduct
and subsequent incarceration impacts the family. We agree
that Supreme Court providently exercised its discretion in
awarding the wife the greater value of the marital residence.
However, we modify the court's ruling to provide for a
60%/40% division rather than a 75%/25% division.
parties were married in June of 1989. They have two children
from the marriage. The first son was born in 1996. A younger
son was born in 2001. Shortly after the older son was born,
the family purchased and moved into a cooperative apartment
on Park Avenue in Manhattan.
parties were gainfully employed at the time of their
marriage. The husband began working for Ernst & Young (E
& Y) in 1991 and was made partner in 1996. In October
2007, due to a pending Securities and Exchange Commission
insider trading investigation, the husband resigned at the
request of E & Y. At that time, he had been earning $1.25
million a year. The wife started working for JPMorgan Chase
in 1982. In 2000, the wife voluntarily left JP Morgan to
raise their two sons. When she resigned to become a
stay-at-home mother, she was earning a salary of
approximately $200, 000 with annual bonuses nearing $500,
2010, the husband was indicted on charges of conspiracy and
insider trading. At trial, the husband maintained his
innocence and claimed that a woman with whom he was having an
affair stole his BlackBerry and used the information to
engage in insider trading. He was found guilty and served a
one year and one day sentence in federal prison from May 2010
through January 2011. The SEC investigation and criminal
trial depleted the joint assets of the parties. The divorce
proceedings started on January 26, 2010.
parties were unemployed from October 2007 through February of
2010. In the matrimonial action, the wife testified that she
attempted unsuccessfully to secure employment starting in
2008. She finally returned to work at JP Morgan in February
of 2010, shortly before the husband was imprisoned. In 2013,
her base salary was $300, 000 and her bonus was more than
$200, 000. The husband began working at Sherwood Partners
after his release from incarceration and testified that, as
of 2013, his base salary was $226, 000.
time of the trial, the apartment was valued at $4.75 million.
The husband admitted that he stopped contributing to the
mortgage shortly before he went to prison in May 2010.
parties offered testimony regarding the children's living
arrangements and significant emotional issues that occurred
after the husband's criminal actions and incarceration.
In January 2014, the younger son threatened to kill himself
and the other students in his middle school class. He was
hospitalized and transferred to a mental health facility,
where he remained for approximately two weeks. At the time of
trial, the younger son had been expelled from two schools,
and was taking classes at home. He was not allowed in a
school facility given his behavior and mental state.
older son also suffered from severe emotional issues. In
October of 2012, he attempted suicide at his boarding school
and was asked to withdraw. He was later officially expelled
following a separate incident.
mother testified that in 2013, after the parties were
separated, the younger son called her hysterically crying
because the father had apparently abused and bitten him. She
testified that the child had a bite mark on his thigh that
was three to four inches in ...