Elmaleh v. Elmaleh
| Decision Date | 08 June 1992 |
| Citation | 584 N.Y.S.2d 857,184 A.D.2d 544 |
| Parties | Ellen ELMALEH, Respondent, v. Stanley ELMALEH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul Martin Weltz, New York City, for appellant.
Simons and Barse, New York City (Lawrence P. Barse, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, SULLIVAN and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Friedenberg, J.H.O.), entered April 13, 1990, which, inter alia, determined that (1) the husband was not entitled to a share of the appreciation in value of certain separate property owned by the plaintiff wife, (2) the wife was entitled to 79.79% and the husband entitled to 20.21% of the proceeds of the sale of commercial real property located at 1449 Temple Street in Los Angeles, California, (3) the husband's retirement trust account was to be divided equally between the parties, and (4) the plaintiff wife was entitled to one-half of certain partnership interests.
ORDERED that the judgment is modified, on the law, by deleting the ninth decretal paragraph thereof; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination in accordance herewith.
The award to the plaintiff of 50% of the value of the husband's retirement plan trust is supported by the record. However, we find that the trial court erred in valuing this asset as of November 1988. A retirement trust constitutes marital property only to the extent that the corpus thereof accumulates during the marriage and prior to the commencement of the divorce action (see, Domestic Relations Law § 236[B][1][c]; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15; Marcus v. Marcus, 137 A.D.2d 131, 138, 525 N.Y.S.2d 238). In awarding the wife a share in the trust's value as of November 1988 the court improperly distributed contributions to the trust which were made after July 17, 1987, the date of the commencement of the instant matrimonial action. Those contributions constituted separate rather than marital property (see, Marcus v. Marcus, supra, at 138, 525 N.Y.S.2d 238). However, since the record is unclear as to what the husband's tax consequences will be if the fund is valued as of the date of the commencement of the action, the matter is remitted to the Supreme Court, Nassau County, for a new computation of the amount of the trust to be paid to the wife by the husband.
We find unpersuasive the husband's contention that he is entitled to equitable distribution of the appreciation of the wife's interest in certain separate properties the wife owned in equal shares with her sisters and which the husband managed full time from 1960 until 1979. Domestic Relations Law § 236(B)(1)(d)(3) defines "separate property" in relevant part as "the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse". Hence, in order to obtain equitable distribution of the appreciation in value of the wife's interest in the properties, the husband was required to demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his efforts (see, Fitzgibbon v. Fitzgibbon, 161 A.D.2d 619, 555 N.Y.S.2d 399; Shahidi v. Shahidi, 129 A.D.2d 627, 630, 514 N.Y.S.2d 259; Price v. Price, 113 A.D.2d 299, 306, 496 N.Y.S.2d 455, affd. 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684). The husband failed to sustain this burden, and the testimony adduced at trial established that the appreciation was caused by an upturn in the real estate market (see, Fitzgibbon v. Fitzgibbon, supra; Shahidi v. Shahidi, supra, 129 A.D.2d at 630, 514 N.Y.S.2d 259; Price v. Price, supra, 113 A.D.2d at 306, 496 N.Y.S.2d 455). Accordingly, the husband failed to establish that the...
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