Carvalho v. Carvalho

• Decision Date: 30 June 2016
• Parties: Maria Lucia CARVALHO, Appellant, v. Manuel J. CARVALHO, Respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1544

34 N.Y.S.3d 535

2016 N.Y. Slip Op. 05199

Maria Lucia CARVALHO, Appellant,

v.Manuel J. CARVALHO, Respondent.

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

June 30, 2016.

Thomas F. Garner, Middleburgh, for appellant.

Law Offices of Walter Terry, Oneonta (Patricia L. Canner of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., ROSE, LYNCH and AARONS, JJ.

ROSE, J.

Appeal from a judgment of the Supreme Court (Burns, J.), entered February 28, 2014 in Otsego County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

After 33 years of marriage and raising four emancipated children, plaintiff (hereinafter the wife) commenced this divorce action in September 2011. The parties were able to stipulate to the distribution of a number of marital assets, and a trial was held to determine how their remaining assets—the existence and value of which were in dispute—would be equitably distributed. Supreme Court granted the parties a judgment of divorce and issued an order directing that all of the parties' assets were marital property. The court found that, among other things, the division of their assets should be equal, but that the wife had transferred or spent $103,000 of marital assets without compensating defendant (hereinafter the husband). To account for these expenditures, the court increased the husband's distributive award by one half of this amount and reduced the wife's distribution by the same amount. The wife appeals.

The wife does not deny that she transferred or spent $103,000 of the parties' assets over the course of more than two years following the commencement of the action. Rather, she argues that Supreme Court abused its discretion by awarding the husband a distributive share of one half of this entire amount because he did not establish his claim that she had wastefully dissipated all of these funds. We must agree. When the courts fashion an equitable distribution award involving marital assets that are wastefully dissipated, as the husband claimed here, we credit the other spouse for his or her distributive share of those depleted assets (see e.g. Murray v. Murray, 101 A.D.3d 1320, 1324–1325, 956 N.Y.S.2d 252 [2012], lv. dismissed 20 N.Y.3d 1085, 965 N.Y.S.2d 74, 987 N.E.2d 635 [2013] ; Altieri v. Altieri, 35 A.D.3d 1093, 1095, 827 N.Y.S.2d 735 [2006] ; Harbour v. Harbour, 227 A.D.2d 882, 884, 643 N.Y.S.2d 969 [1996] ). However, when the depleted marital assets have been spent on legitimate household or living expenses, they are not included in the equitable distribution calculus (see e.g. Epstein v. Messner, 73 A.D.3d 843, 846, 900 N.Y.S.2d 454 [2010] ; Waldmann v. Waldmann, 231 A.D.2d 710, 711, 647 N.Y.S.2d 827 [1996], lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502 [1997] ; Harbour v. Harbour, 227 A.D.2d at 883–884, 643 N.Y.S.2d 969 ; Brandt v. Brandt, 176 A.D.2d 1016, 1017, 574 N.Y.S.2d 868 [1991] ; Seeley v. Seeley, 135 A.D.2d 703, 704, 522 N.Y.S.2d 603 [1987] ). Significantly, it was the husband's burden to “prov[e] that [the wife] in fact wastefully dissipated any marital asset” (Unger–Matusik v. Matusik, 276 A.D.2d 936, 938, 715 N.Y.S.2d 449 [2000] ; see Treffiletti v. Treffiletti, 252 A.D.2d 635, 637, 675 N.Y.S.2d 192 [1998] ; Strang v. Strang, 222 A.D.2d 975, 978, 635 N.Y.S.2d 786 [1995] ).

Here, Supreme Court expressly states in its order that there was insufficient evidence to determine how much money the wife wastefully dissipated. Nonetheless, the court chose to award the husband his distributive share of the full amount in question, after stating generally, and without further explanation, that the wife was “less than credible” and that, therefore, all “disputes of fact” had been resolved in the husband's favor. In our view, however, this portion of the order dealing with the transferred $103,000 contradicts itself, inasmuch as its practical effect is to treat the entire amount as having been wastefully dissipated, despite the court's finding that the evidence was insufficient to make such a determination. Furthermore, our own review of the record confirms the lack of evidence to support a finding that the entire amount was wastefully dissipated.

At trial, the wife testified that $5,000 of the $103,000 in marital assets that she had transferred into a personal checking account with NBT Bank remained in that account. Supreme Court included this $5,000 NBT Bank account balance in the credits and reductions that it imposed after finding that the entire amount of $103,000 had been improperly transferred. However, the court also ordered that the $5,000 account balance be distributed to the wife, with a corresponding distribution of other marital assets in like amount to the husband. By awarding defendant $5,000 worth of other marital assets to offset a distribution of this account balance to the wife and simultaneously treating the $5,000 as though it had been wastefully dissipated, the wife was unfairly penalized. Accordingly, the total amount of assets that should have been subject to the court's apparent wasteful distribution analysis is $98,000, rather than $103,000 ($103,000–$5,000 = $98,000). We therefore remit the matter to Supreme Court for the purpose of increasing the wife's distributive award by the amount of $2,500 and reducing the husband's award by the same amount.

When questioned about how the rest of the money—i.e., $98,000—was spent, the wife admitted that she used $24,000 to purchase a 2014 Surbaru Forester because her old vehicle—a 2010 Pontiac Vibe that was fully paid off—needed a new battery. She also admitted that she had spent $14,000 on a landscaping project at her residence. In reviewing this testimony, we find that the wife's admissions constitute sufficient proof that she wastefully dissipated $38,000 in marital assets, $24,000 of which she needlessly spent on the new vehicle, and $14,000 of which she spent on the landscaping project that, in our view, is beyond what could be reasonably considered to be a normal household or living expense. Therefore, we further find that Supreme Court properly exercised its discretion in awarding the husband one half of these funds—i.e., $19,000—and reducing the wife's award by the same amount (see Harbour v. Harbour, 227 A.D.2d at 884, 643 N.Y.S.2d 969 ).

As for the remaining $60,000 of the depleted $98,000 in marital assets ($98,000–$38,000 = $60,000), the husband failed to meet the burden imposed by his position adopted at trial and on appeal, namely, that these funds were wastefully dissipated. With respect to these expenditures, the wife testified that she spent $7,000 on property and school taxes. She also explained, albeit in general terms and with the aid of a Portugese-language interpreter, that she used the remaining $53,000 for bills, insurance premiums and other household and living expenses necessary to support herself because, at age 70, she had no personal income other than $9,000 per year in Social Security payments. Indeed, the only evidence in the record regarding the manner in which the wife spent these funds is her own testimony, in which she repeatedly stated that she used the money for legitimate household and living expenses over the course of more than two years. Thus, the husband raised no “disputes of fact” that called for a credibility determination with respect to these expenditures. In our view, the only reasonable conclusion that this evidence supports is that the wife used the remaining $60,000 for legitimate living expenses and, further, that the husband failed to establish that the wife wastefully dissipated these funds (compare McGarrity v. McGarrity, 211 A.D.2d 669, 670–671, 622 N.Y.S.2d 521 [1995] ). Accordingly, we find that Supreme Court abused its considerable discretion by awarding the husband one half of these funds—i.e., $30,000—and reducing the wife's award by the same amount, inasmuch as these funds should have been removed altogether from the pool of marital assets. We therefore remit the matter to Supreme Court for the additional purpose of increasing the wife's distributive award by the amount of $30,000 and reducing the husband's award by the same amount.

The wife also contends that Supreme Court failed to value and distribute the proceeds of a Wells Fargo IRA in the husband's name. Although the parties did not stipulate to this account, the husband's June 2012 statement of net worth unambiguously states that he had an IRA with Wells Fargo with a balance of $18,842.97.¹

The husband also confirmed at trial that the account had once existed, but...