Barnhart v. Barnhart

• Decision Date: 02 March 2017
• Citation: 48 N.Y.S.3d 818,148 A.D.3d 1264
• Parties: Scott Rammond BARNHART, Appellant, v. Jennifer Hope BARNHART, Respondent.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1264

48 N.Y.S.3d 818

Scott Rammond BARNHART, Appellant,

v.Jennifer Hope BARNHART, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 2, 2017.

Harlem & Jervis, Oneonta (Richard A. Harlem of counsel), for appellant.

Andrew H. Van Buren, Hobart, for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and MULVEY, JJ.

McCARTHY, J.P.

Appeal from a judgment of the Supreme Court (Burns, J.), entered October 23, 2015 in Delaware County, which ordered, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 2002. In 2014, the husband brought this action for divorce based on an irretrievable breakdown in the parties' relationship for a period of time in excess of six months. A trial was held in May 2015. Neither party—both of whom were represented by counsel—complied with 22 NYCRR 202.16(h), which required them to submit statements of proposed distribution that specified, among other things, "assets claimed to be marital property[,] assets claimed to be separate property [and] the amount requested for maintenance, indicating and elaborating upon the statutory factors forming the basis for the maintenance request" (22 NYCRR 202.16 [h][1][i], [ii], [iv] ). Neither party made opening or closing statements at trial and neither party submitted expert evidence or evidence in the form of financial documentation or title documentation related to any asset at issue. Moreover, the parties were the only witnesses at the trial. Thereafter, Supreme Court (Becker, J.) issued an order granting the wife $250 a week in maintenance for an approximately 11–year period and determining the value and equitable distribution of the marital residence, tangible personal property and retirement savings. More specifically, after determining the value of marital property and making various awards of the marital residence and tangible personal property,¹ the court ordered the husband to "take all necessary steps to place" a specified amount of his retirement account in the wife's name, which, according to the court's valuations, led to an overall equal division of the marital property. Thereafter, Supreme Court (Burns, J.) issued a judgment of divorce, incorporating the order. The husband appeals.

Initially, the husband argues that he and the wife submitted such little evidence at the trial that this Court ought to order a retrial. However, the only error that the husband attributes to Supreme Court (Becker, J.) regarding the trial is that the court ought to have ordered him and the wife to submit statements of proposed distribution pursuant to 22 NYCRR 202.16(h). At no point prior to the court's issuance of its order did the husband contend that the court could not resolve the issues raised at trial in the absence of the parties' compliance with 22 NYCRR 202.16(h), and therefore that argument is unpreserved for our review (see Carvalho v. Carvalho, 140 A.D.3d 1544, 1549, 34 N.Y.S.3d 535 [2016] ).

Turning to equitable distribution, we disagree with the husband that there was insufficient evidence for Supreme Court to value the marital home, which was distributed to the wife. When examined at trial about the value of the marital home, the husband testified that the home was worth "$50,000[,] we decided on that." Neither party submitted any other proof that would allow for a more precise valuation of the home or any proof that would indicate, contrary to the husband's testimony, that the $50,000 valuation of the home was even contested. Accordingly, we cannot say that the court abused its discretion by, in the absence of any opposing proof, crediting the husband's testimony as to the value of the home (see Dashnaw v. Dashnaw, 11 A.D.3d 732, 734, 783 N.Y.S.2d 93 [2004] ; Kennedy v. Kennedy, 256 A.D.2d 1048, 1049, 683 N.Y.S.2d 608 [1998] ; Fassett v. Fassett, 101 A.D.2d 604, 604, 475 N.Y.S.2d 154 [1984] ). In any event, even if, as the husband claims, the court erred in overvaluing the home, or any other asset distributed to the wife, any such error inured to his benefit given the court's equal distribution based on the value of the marital property.

Further, Supreme Court did not err in attributing no value to a 2012 Chevy Suburban vehicle that the court awarded to the wife, subject to any debt against it. The proof established that the vehicle was marital property, and the husband put forward no documentary evidence establishing that the vehicle was titled to him. Moreover, he conceded both that the vehicle was within the wife's possession and that she was paying the lien on it. Thus, the husband "had the burden of proving the asset's value so as to afford the court a sufficient basis upon which to make a distributive award" (Alper v. Alper, 77 A.D.3d 694, 696, 909 N.Y.S.2d 131 [2010] [internal quotation marks and citation omitted]; see Iwahara v. Iwahara, 226 A.D.2d 346, 347, 640 N.Y.S.2d 217 [1996] ). Particularly given the husband's testimony that he had "no idea" what the vehicle was worth, Supreme Court did not abuse its discretion in determining that it had no value for the purpose of equitable distribution (see Kosturek v. Kosturek, 107 A.D.3d 762, 763, 968 N.Y.S.2d 97 [2013] ; Grenier v. Grenier, 210 A.D.2d 557, 558, 620 N.Y.S.2d 139 [1994] ; Semans v. Semans, 199 A.D.2d 790, 791, 605 N.Y.S.2d 510 [1993], lv. denied 83 N.Y.2d 758, 615 N.Y.S.2d 875, 639 N.E.2d 416 [1994] ).²

Nonetheless, given the uncontested proof in the record that the husband acquired three firearms at the age of sixteen and prior to the marriage, Supreme Court erred in finding those firearms, valued at $300, to be marital property subject to equitable distribution (see Domestic Relations Law § 236[B][1][d][1] ["property acquired before marriage" is separate property] ). Likewise, the court also erred when it determined that the husband had two retirement accounts that were marital property and that were, at the time of the commencement of the proceeding, collectively valued at $160,000. The only proof regarding these accounts was the husband's admissions that he, at one point, had two retirement accounts, each worth $80,000, and his further acknowledgment that the wife was entitled to half his retirement savings. The husband specified, however, that the parties, "when [they] were together during the marriage," removed assets from the second of the accounts so that only $8,000 remained.³ As there is no contradictory proof in the record that would support the factual conclusion that the...