Brown v. Brown

• Decision Date: 23 March 1989
• Parties: Delaine BROWN, Plaintiff-Respondent, v. Arthur BROWN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 945

538 N.Y.S.2d 945

148 A.D.2d 377

Delaine BROWN, Plaintiff-Respondent, v. Arthur BROWN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 23, 1989.

E. Kaufman, for plaintiff-respondent.

N.S. Heller, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and ASCH, KASSAL, ROSENBERGER and SMITH, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) of the Supreme Court, New York County (Irving Kirschenbaum, J.), entered on or about June 7, 1988, which, inter alia, denied defendant Arthur Brown's motion to vacate his default, granted plaintiff Delaine Brown's motion to confirm the report of the Special Referee, and set out details of the distribution of real and personal property between the parties, is unanimously modified, on the law and facts, to the extent of awarding defendant ownership of those items of personalty plaintiff admitted in the record were acquired from defendant's father's apartment; providing that the costs of storage for the parties' personal property be shared equally by both parties; and vacating the provision for payment of counsel fees by defendant, and otherwise affirmed, without costs or disbursements.

Appeal from the decision of the Supreme Court, New York County (Irving Kirschenbaum, J.), entered on or about March 1, 1988, is dismissed, as non-appealable, and subsumed in any event in the order and judgment herein, without costs and disbursements.

The plaintiff and defendant were married in May 1962. They have no children. Although defendant, husband, graduated from medical school in 1970 and completed a dual internship and residency in two specialties, he never obtained a license to practice medicine and did not pursue a medical career because of psychological and medical problems. Plaintiff, wife, however, worked the entire time the parties were together.

In 1984, plaintiff was awarded a judgment of divorce, on the grounds of cruel and inhuman treatment commencing in 1975 and continuing throughout the marriage, and defendant was awarded judgment against the plaintiff on the grounds of abandonment in or about August 1979. Issues relating to ownership of personal and real property were severed for separate trial.

Thereafter, in her report, the Special Referee found that in three years since the order of reference, the defendant had, despite numerous warnings from her and his own attorneys, effectively abandoned the case. She proceeded to report based upon the evidence adduced by the plaintiff.

For the years 1962 through 1978 the defendant, a student or intern during most of that time, earned somewhat less than $70,000; the plaintiff earned about $265,164. In 1973 the defendant received $53,000 from his father's estate, which he turned over to plaintiff, who in turn placed it in a joint account with a stockbroker. In 1981 both parties received $10,000 from that account. The value of the account was in excess of $29,000 as of April 30, 1986. The referee found the parties had three other joint assets when they separated in 1979. These were the contents of the marital apartment including a sizable collection of art, a home and 48 acres of land in Vermont, and a savings account at the Harlem Savings Bank.

It is not disputed that the Vermont property was purchased in the names of both parties, on October 5, 1978, for a sum of $113,000. The plaintiff testified and defendant does not dispute that the $33,000 cash down-payment came out of the joint stock account and that the property was encumbered by an $80,000 mortgage. The plaintiff also testified and produced documentation to show that she paid all of the expenses on the Vermont property. Based on a schedule of expenses submitted by plaintiff supported by exhibits, the referee found that the total expended by plaintiff on the property in Vermont from 1978 until the date of the hearing was $97,016.76, one-half of which the referee found was paid on behalf of the defendant and not reimbursed. In 1984 the property was assessed at a value of $211,700. Plaintiff's appraiser placed the value of $186,000 on the property as of September 1985. Using that appraised value reduced by the balance of $70,883 then due on the mortgage, the referee found that the net value of the property was $115,117 and that each party owned one-half the net value of the property or $57,558.50. Since the plaintiff had paid one-half of $97,016.76, or $48,508, on behalf of the defendant, and was not reimbursed, the referee found that to purchase the defendant's share of the property, she would have to pay $9,050.50 to defendant, and based on those same figures, to purchase plaintiff's share of the property defendant would have to pay $106,066.50.

With respect to the Harlem Savings Bank account, defendant withdrew $11,800 in December 1978 and transferred it to an account in Vermont. In his brief and papers filed on the motion to vacate the default, defendant maintains that the money was used for living expenses and supplies while he lived at and restored the Vermont property.

The personal property which was contained in the marital residence, a rental apartment located on Fort Washington Avenue, was inventoried at the various warehouses where it was placed by plaintiff. The bulk of this personal property is a collection of artworks. The referee recommended that the parties be given the articles acknowledged by plaintiff as belonging to each and that all items designated as jointly owned be sold, with the proceeds divided equally after payment of storage. However, the ownership of much of the artwork is disputed. The record reflects that the bulk of the art collection is listed as joint property. Plaintiff maintains that defendant brought none of the art items into the marriage. However, the defendant maintains that only a minimal amount of the artwork was purchased during the marriage and that most of it was acquired before the marriage.

Not mentioned in the referee's report are the contents, which defendant maintains plaintiff took, of a rental beach bungalow in Atlantic Beach, Long Island. Plaintiff claims that all of the personalty except a damaged television set was returned to the bungalow in 1981.

Defendant did not dispute that the plaintiff paid the expenses on the Vermont property from the date of its purchase to the entry of the judgment. In addition, it is not disputed that she paid storage on the parties' personal property stored in warehouses, listed on schedules in the record. The expenses plaintiff incurred on the Vermont property were brought forward to ...