Dugue v. Dugue

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CASEY; YESAWICH; CASEY
• Citation: Dugue v. Dugue, 568 N.Y.S.2d 244, 172 A.D.2d 974 (N.Y. App. Div. 1991)
• Decision Date: 11 April 1991
• Parties: Karen DUGUE, Respondent-Appellant, v. John DUGUE, Appellant-Respondent.

Page 244

568 N.Y.S.2d 244

172 A.D.2d 974

Karen DUGUE, Respondent-Appellant, v. John DUGUE, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

April 11, 1991.

Siller & Galian (Sidney Siller, of counsel), New York City, for appellant.

Crane, Wolfson, Roberts & Greller (Mark I. Reisman, of counsel), Poughkeepsie, for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.

YESAWICH, Justice.

Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from a judgment of the Supreme Court (Beisner, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered December 6, 1989 in Dutchess County, upon a decision of the court, and (2) from an order of said court, entered September 7, 1989 in Dutchess County, which denied plaintiff's motion for counsel fees.

The parties, both 29 years old at the time, were married on August 10, 1972. This divorce action was commenced on April 17, 1985. Although there were no issue from their union, the three children from plaintiff's previous marriage lived with the couple while they were still together. During the marriage, both parties obtained real estate licenses, and plaintiff also acquired a nursing license. In addition, they purchased a number of income-producing properties, several cars and other tangible items. In 1981, defendant started a real estate business, John Dugue, Inc., which he continues to operate.

Supreme Court granted mutual divorces, awarded the parties their identified separate property, ordered property it determined to be marital property sold and the proceeds therefrom equally divided, denied defendant any distributive award for plaintiff's nursing degree, credited plaintiff with one fourth of the value of John Dugue, Inc. and denied plaintiff's motion for counsel fees. Plaintiff appeals the denial of her request for counsel fees, while defendant challenges the court's distribution of the parties' real and personal property.

Examination of Supreme Court's comprehensive decision discloses that the court properly weighed all the relevant factors required to be considered in effecting equitable distribution, including the tax consequences and earning power of the parties (see, Domestic Relations Law § 236[B][5][d][8], [10], and then divided the property essentially equally. In view of the length of the marriage and the financial and other contributions of the parties, that division is fair (see, Bisca v. Bisca, 108 A.D.2d 773, 774, 485 N.Y.S.2d 302, appeal dismissed 66 N.Y.2d 741, 497 N.Y.S.2d 365, 488 N.E.2d 111).

Initially, we note that the bulk of defendant's criticism of Supreme Court's decision is directed at that court's resolution of credibility issues. To the extent that defendant claims that his witnesses' testimony should have been credited rather than plaintiff's, we find no reason to disturb the court's treatment of these issues (see, Lischynsky v. Lischynsky, 120 A.D.2d 824, 827-828, 501 N.Y.S.2d 938). In any event, defendant's own testimony belies many of his challenges to the award's fairness. For example, he suggests that plaintiff's earning potential is greater than his own and that this fact, coupled with his alleged poor health, mandates that he be allotted more than a 50% share of the marital property. Defendant testified, however, that even though he has worn a pacemaker since 1976, at the time of trial he worked seven days a week, eight hours a day, and earned between $60,000 and $100,000 yearly. Plaintiff, in contrast, though in good health, earned a maximum of only $29,000.

Equally uncompelling is defendant's contention that his property flow chart, which purportedly identifies the cash source for each real property purchase, was uncontroverted. The record is to the contrary; plaintiff testified at trial, and Supreme Court apparently accepted her testimony, that the money to attain these properties came from the parties' joint bank accounts.

Nor is defendant entitled to the entire proceeds from the sale of his Mercedes automobile. The vehicle was purchased before this action was commenced, the date Supreme Court chose as the valuation date; accordingly, it was rightly considered marital property (see, Domestic Relations Law § 236[B][1][c]. And as for defendant's assertion that he should be credited with an undocumented $30,000 loan advanced to him by his mother, which money was used by the parties to start-up the John Dugue, Inc. real estate agency, it suffices to note that this money was first deposited into the parties' joint account and then later withdrawn to begin the business. Given the presumption that the parties are equally entitled to deposits made to joint accounts (Banking Law § 675[b]; see, Parry v. Parry, 93 A.D.2d 989, 990, 461 N.Y.S.2d 616), and that defendant's proof failed to overcome this presumption, the loan proceeds were thereby converted into marital property (see, Di Nardo v. Di Nardo, 144 A.D.2d 906, 907, 534 N.Y.S.2d 25; Lischynsky v. Lischynsky, supra, 120 A.D.2d at 826, 501 N.Y.S.2d 938; 3 Foster, Freed and Brandes, Law and the Family § 2:7, at 69-70 [2d ed].

A number of defendant's other challenges which do not turn on the parties' credibility are simply unsupported by the record. There is no evidence to support defendant's charge that plaintiff secreted money in a bank account not listed on her statement of net worth to prevent Supreme Court from distributing it equitably. Nor is there any evidence buttressing defendant's claim that he earned the $70,000 in his bank account from commissions on his real estate transactions; hence, Supreme Court cannot be faulted for distributing one half of this amount to plaintiff. And notwithstanding whether defendant's claim that his financial contribution to the marriage exceeded plaintiff's is accurate, the fact remains that it fails to appreciate the substantial contribution plaintiff made as wife, homemaker, and business associate (see, Day v. Day, 112 A.D.2d 972, 973, 492 N.Y.S.2d 783; Harness v. Harness, 99 A.D.2d 658, 472 N.Y.S.2d 234; see, 3 Foster, Freed and Brandes, Law and the Family § 16:6, at 682 [2d ed].

There is little question that plaintiff's nursing degree, obtained during the marriage, is marital property (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712), or that Supreme Court did not equitably...