- October 25, 2019
Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY
(Brian J. Isaac of counsel), for appellant.
S. Kronick, White Plains, NY, for respondent.
WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
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.
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
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.
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.
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).
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.
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).
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).
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 ...