Embury v. Embury

• Decision Date: 25 March 2008
• Docket Number: 2007-00584.,2006-05280.
• Citation: 2008 NY Slip Op 02786,854 N.Y.S.2d 502,49 A.D.3d 802
• Parties: DARLENE EMBURY, Respondent, v. JAMES EMBURY, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 802

854 N.Y.S.2d 502

2008 NY Slip Op 02786

DARLENE EMBURY, Respondent, v. JAMES EMBURY, Appellant.

2006-05280.

2007-00584.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 25, 2008.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from (1) so much of a judgment of the Supreme Court, Westchester County (Montagnino, R.), dated December 21, 2005, as, after a nonjury trial, (a) determined that certain real property located in Yorktown Heights, New York, was separate property not subject to equitable distribution

and, in effect, that he was not entitled to a credit for his contributions toward improvements in the property, (b) set the basic child support obligation at $37,200 annually, the defendant's pro rata share of the basic child support obligation, child care expenses, and the children's unreimbursed health care costs at 75%, and his monthly child support obligation at $2,325, and (c) directed the parties to sell a 1989 Mercedes Benz vehicle acquired during the marriage and share the proceeds, and (2) so much of an order and judgment (one paper) of the same court (Colabella, J.), dated November 16, 2006, as, upon granting the plaintiff's motion, inter alia, to hold the defendant in contempt, and upon adjudging the defendant to be in contempt, awarded the plaintiff counsel fees in the sum of $7,155 and directed the defendant to execute and deliver to the plaintiff the title and registration to the parties' 1989 Mercedes Benz vehicle.

Ordered that the judgment dated December 21, 2005 is modified, on the law and in the exercise of discretion, by deleting the provisions thereof setting the basic child support obligation at $37,200 annually, the defendant's pro rata share of the basic child support obligation, child care expenses, and the subject children's unreimbursed health care costs at 75%, and his monthly child support obligation at $2,325, and substituting therefor provisions setting the basic child support obligation at $27,900 annually, the defendant's pro rata share of the basic child support obligation, child care expenses, and the subject children's unreimbursed health care costs at 67%, and his monthly child support obligation at $1,557.75; as so modified, the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the order and judgment dated November 16, 2006 is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof awarding counsel fees, and (2) by adding to the provision thereof directing the defendant to execute and deliver to the plaintiff the title and registration to the parties' 1989 Mercedes Benz vehicle a provision granting the defendant an option to purchase the plaintiff's one-half interest in the vehicle and directing that, in the event the defendant does not exercise his option to purchase the plaintiff's one-half interest in the vehicle, the defendant shall execute and deliver to the plaintiff the title and registration to the vehicle so that it may be sold and the proceeds divided equally between the parties; as so modified, the order and judgment is affirmed insofar as appealed from; and it is further,

Ordered that time for the defendant to exercise his option to purchase the plaintiff's one-half interest in the parties' 1989 Mercedes Benz vehicle shall extend until 90 days after service upon him of a copy of this decision and order; and it is further,

Ordered that one bill of costs is awarded to the defendant.

Contrary to the defendant's contention, the Supreme Court properly determined that certain real property located in Yorktown Heights, New York, which was gifted to the plaintiff by her mother during the marriage, was the plaintiff's separate property. "`Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property'" (Massimi v Massimi, 35 AD3d 400, 402 [2006], quoting Judson v Judson, 255 AD2d 656, 657 [1998]; see Domestic Relations Law § 236 [B] [1] [c], [d] [1]; McSparron v McSparron, 190 AD2d 74, 77 [1993]). Here, the plaintiff sustained that burden with evidence that she and her mother purchased the property in November 2005, with her mother paying the down payment and all the closing costs, and the mother subsequently gifting to her the mother's interest in the home. Contrary to the defendant's contentions, the property was not converted to marital property through his contributions and efforts toward its renovation (cf. Matwijczuk v Matwijczuk, 261 AD2d 784 [1999]).

Moreover, in order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution (see Hartog v Hartog, 85 NY2d 36, 46 [1995]; Price v Price, 69 NY2d 8, 18 [1986]; Nowik v Nowik, 228 AD2d 421 [1996]), the nontitled spouse must "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" (Elmaleh v Elmaleh, 184 AD2d 544, 545 [1992]; see Burgio v Burgio, 278 AD2d 767, 769 [2000]; Chan v Chan, 267 AD2d 413, 414 [1999]). Here, the defendant did not sustain his burden, as he failed to set forth proof that the property actually increased in value and, in any event, h...