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Ospina-Cherner v. Cherner

Supreme Court of New York, Second Department

December 24, 2019

Ana Ospina-Cherner, respondent,
v.
Daniel Cherner, appellant. Index No. 2454/13

         D61684 G/htr

          Argued - October 25, 2019

          Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY (Brian J. Isaac of counsel), for appellant.

          Arnold S. Kronick, White Plains, NY, for respondent.

          WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Westchester County (John P. Colangelo, J.), entered January 21, 2016. The judgment of divorce, upon a decision of the same court (Paul I. Marx, J.), dated November 13, 2015, made after a nonjury trial, inter alia, awarded the plaintiff a distributive award of $25, 000 as and for her interest in the defendant's Master of Business Administration degree and equitably distributed three properties owned by the parties.

         ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff $25, 000 as and for her interest in the defendant's Master of Business Administration degree; as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.

         The parties were married in August 2000 and have two children together. During the course of the marriage, both parties earned master's degrees, and they acquired certain property in New Rochelle. In addition, during the course of the marriage, the plaintiff acquired certain property in the Bronx with her stepfather, and in Cali, Colombia, with her mother. The Bronx property was used to generate rental income, and ultimately was sold in June 2012.

         The plaintiff commenced this action for a divorce and ancillary relief in May 2013. A nonjury trial was held on the issues of equitable distribution. The Supreme Court issued a decision after trial, dated November 13, 2015, which, inter alia, determined that: the parties would be required to sell the New Rochelle property and equally share in the net profits or losses; the defendant was entitled to one-half of the plaintiff's one-half share of the proceeds from the sale of the Bronx property; the plaintiff would be awarded the Colombia property; the parties were not entitled to any equitable distribution of the other's retirement or pension accounts; the plaintiff was entitled to $25, 000 as and for her interest in the defendant's Master of Business Administration (hereinafter MBA) degree; and the parties were not entitled to an award of counsel fees. Thereafter, the court entered a judgment of divorce on January 21, 2016, which, inter alia, incorporated the November 13, 2015, decision. The defendant appeals.

         "The Domestic Relations Law recognizes that the marriage relationship is an economic partnership. As such, during the life of a marriage spouses share in both its profits and losses. When the marriage comes to an end, courts are required to equitably distribute not only the assets remaining from the marriage, but also the liabilities" (Mahoney-Buntzman v Buntzman, 12 N.Y.3d 415, 420). The trial court has broad discretion in making an equitable distribution of marital property (see id. at 420). "However, during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end" (id. at 420-421; see Westreich v Westreich, 169 A.D.3d 972, 976).

         In light of these principles, and the defendant's failure to prove that the plaintiff engaged in wasteful dissipation of marital assets (see Epstein v Messner, 73 A.D.3d 843, 846), we find no merit to the defendant's contentions that he is entitled to certain credits for money that the plaintiff allegedly spent on a certain rental apartment, for profits allegedly earned by the plaintiff for a daycare business that she operated during the course of the marriage, or for rent allegedly collected on the property she owned in the Bronx with her stepfather.

         Contrary to the defendant's contention, the Supreme Court did not err in determining his distributive award of the proceeds of the sale of the Bronx property. The court considered the plaintiff's conveyance of a portion of her interest in the property to her mother, before the commencement of this action for no consideration, and accounted for the improper transfer in determining the defendant's equitable share (see Shah v Shah, 100 A.D.3d 734, 734-735).

         Nor did the Supreme Court err in declining to award the defendant a share in the property located in Cali, Colombia. The parties' conflicting testimony as to whether the defendant was repaid the money advanced to the plaintiff and her mother for the purchase of the property presented a question of credibility, which the court resolved in the plaintiff's favor. A trial court's credibility determinations are afforded great weight on appeal (see Halley-Boyce v Boyce, 108 A.D.3d 503, 505; Alper v Alper, 77 A.D.3d 694, 695). Moreover, the defendant failed to establish by competent evidence the monetary value of the alleged appreciation of the property (see Halley-Boyce v Boyce, 108 A.D.3d at 505; Morales v Inzerra, 98 A.D.3d 484).

         Contrary to the defendant's contention, the Supreme Court did not err in directing that the New Rochelle property be sold and the net profits or losses be split between the parties. The defendant failed to submit any credible evidence supporting his contention that ...


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