Crane v. Crane

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before RITTER
• Citation: Crane v. Crane, 609 N.Y.S.2d 632, 202 A.D.2d 665 (N.Y. App. Div. 1994)
• Decision Date: 28 March 1994
• Parties: In the Matter of Wendy CRANE, Appellant, v. Alan CRANE, Respondent.

Page 632

609 N.Y.S.2d 632

202 A.D.2d 665

In the Matter of Wendy CRANE, Appellant, v. Alan CRANE, Respondent.

Supreme Court, Appellate Division Second Department.

March 28, 1994.

England & England, P.C., Centereach (Donna England, of counsel), for appellant.

Edward J. DiNunzio, Port Jefferson, for respondent.

Before RITTER, J.P., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a child support proceeding pursuant to Family Court Act article 4, the petitioner appeals from an order of the Family Court, Suffolk County (Auperin, J.), entered December 17, 1991, which denied her objections to an order of the same court (Rodriguez, H.E.), entered February 27, 1991, which, after a hearing, denied her application to vacate prior findings of fact and denied the application for an upward modification in child support.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the petition is granted to the extent that the matter is remitted to the Family Court, Suffolk County, for a determination as to the amount of the upward modification in accordance herewith.

We conclude that the Family Court erred in denying the petitioner's objections to the Hearing Examiner's findings of fact. Both the Hearing Examiner and the Family Court acknowledged that the respondent-husband had engaged in the hiding and misrepresenting of his interests in various assets. However, the Family Court, in confirming the findings of the Hearing Examiner, concluded that the respondent "did not own and/or enjoy any financial benefit from" these assets. With respect to two of the assets in question, we hold that the Family Court erred as a matter of law.

The record clearly evinces the existence of a joint bank account held by the respondent and his present spouse. Approximately $118,000 was deposited into this account in the year immediately following the filing of the instant petition. Banking Law § 675(b) creates a statutory presumption that the respondent owns a one-half interest in the account (see, Angelo v. Angelo, 74 A.D.2d 327, 330, 428 N.Y.S.2d 14). Since the respondent has not rebutted this statutory presumption with "clear evidence to the contrary," the Family Court erred, as a matter of law, in concluding that the respondent did not have an ownership interest in the proceeds of the account (see, Angelo v. Angelo, supra ). Similarly, the Family Court erred, as a matter of law, in concluding that the respondent did not have an...