Brennan v. Brennan
| Decision Date | 26 July 1984 |
| Citation | 103 A.D.2d 48,479 N.Y.S.2d 877 |
| Parties | Barbara L. BRENNAN, Appellant, v. Robert J. BRENNAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Rapport, Meyers, Griffen & Whitbeck, Hudson (Victor M. Meyers, Hudson, of counsel), for appellant.
Shanley & Shanley, Troy (Donald J. Shanley, Troy, of counsel), for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
The parties to this divorce action were married on June 16, 1958. All of the children of the marriage are now emancipated. Shortly before the marriage, the husband purchased a farm in Columbia County to be used both as a family residence and for dairy farming. The purchase price of $25,000 was financed by a mortgage, gifts from the husband's family and a $1,000 contribution from the wife. When the husband moved to the farm, he brought 32 head of cattle and equipment and machinery which had been used by him before the marriage in operating a dairy business in Connecticut. Two other houses were later erected on the property, one of which became the family dwelling. For the first two years of the marriage, the wife actively assisted her husband in the dairy business, but, with the arrival of children, she devoted herself almost exclusively to child care and keeping house. In 1979, the husband decided to restrict his business operation to raising and selling heifers. He sold off his dairy herd and, from the proceeds, paid some debts and purchased certificates of deposit worth $60,000.
In 1981, following marital difficulties, the wife moved out of the family residence and into one of the other houses on the farm. In July of that year, she commenced the instant action for divorce. A temporary support order was granted directing the husband to pay her $100 a week plus certain maintenance expenses on the house she occupied. When the case was reached for trial, the husband withdrew his answer and counterclaim and consented that the wife could obtain a default divorce on the ground of abandonment. A trial was then held on the contested financial aspects of the divorce. After the conclusion of the trial, Trial Term made a distributive award of $174,373.60 to the wife, representing 40% of what the court determined to be the parties' marital property, denied the wife any award for maintenance, but granted her counsel fees of $8,000. The court also canceled arrears on the temporary order. This appeal by the wife followed.
The wife contends that Trial Term erroneously denied her maintenance by disregarding the length of the marriage and her age, physical infirmities and lack of employable skills, all factors requiring consideration under the Equitable Distribution Law (Domestic Relations Law, § 236, part B, subd. 6, par. a, cls. ). Although subdivision 6 (par. a) of this section of the Equitable Distribution Law does specify that the foregoing factors must be considered and dealt with in any decision on maintenance, the statute makes clear that they are in aid of the primary maintenance issue of what is required "to meet the reasonable needs of a party to the matrimonial action * * * as justice requires, having regard for the circumstances of the case and of the respective parties" (Domestic Relations Law, § 236, part B, subd. 6, par. a). The statute further directs that a determination of reasonable needs requires a comparison of the respective financial resources of the parties (id.). In the instant case, the wife only proved needs of $400 a week to meet her current living expenses. No proof was adduced by her that the preseparation standard of living of the parties would have required a maintenance award in excess of those needs. Since a reasonable return on the aggregate of her distributive award and separate property from an inheritance could be expected to approximate her needs, it cannot be said that Trial Term erred in denying the wife any award for maintenance.
As to the distributive award, Trial Term found that the farm, certificates of deposit and a bond fund (acquired during the marriage by a conversion of certain life insurance policies) were marital property subject to equitable distribution. The parties stipulated to the respective values of these assets, with a total worth of $435,934. The court held that 107 head of cattle valued at $47,410 and related equipment and machinery worth $41,550 were the husband's separate property, for the stated reason that "defendant had a previously established and viable farm operation prior to the marriage of the parties". Also held to be the husband's separate property were horses and related equipment, having an aggregate value of $9,750, because they "were purchased by defendant and almost exclusively under his control as a type of hobby". Trial Term also excluded from marital property subject to equitable distribution household furniture and a 1975 automobile, appraised at $1,290 in total, which were awarded to the wife.
In our view, several errors were committed in Trial Term's disposition of the property of the parties. First, the record was insufficient to support the finding that the value of the present 107 head of cattle and farm equipment entirely constituted the separate property of the husband. Undeniably, the cattle and equipment in question were either produced or purchased during the marriage, and thus fell squarely within the statutory definition of marital property (Domestic Relations Law, § 236, part B, subd. 1, par. c). Moreover, since they did not predate the marriage and were not acquired by gift or inheritance, they could not be excluded from equitable distribution under the initial statutory definition of separate property (Domestic Relations Law, § 236, part B, subd. 1, par. d, cl. ). The apparent justification for their exclusion is that, because the present herd and equipment can be considered an outgrowth of the cattle and equipment used in business by the husband before the marriage, they are covered by the further statutory definition of separate property as "property acquired in exchange for or the increase in value of separate property" (Domestic Relations Law, § 236, part B, subd. 1, par. d, cl. ). However, the husband testified that the productive life and marketable value of the 32 cattle he brought to the marriage had been...
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