Formica v. Formica

• Decision Date: 12 December 2012
• Citation: 2012 N.Y. Slip Op. 08485,101 A.D.3d 805,957 N.Y.S.2d 149
• Parties: Vittoria FORMICA, appellant, v. Cesarino FORMICA, respondent.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 805

957 N.Y.S.2d 149

2012 N.Y. Slip Op. 08485

Vittoria FORMICA, appellant,

v.Cesarino FORMICA, respondent.

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

Dec. 12, 2012.

Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten of counsel), for appellant.

Victor F. Villacara, Patchogue, N.Y., for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Kent III, J.), entered August 16, 2011, which, upon, among other things, a decision of the same court dated August 12, 2011, made after a nonjury trial, inter alia, (a) determined that the appreciation in the value of the marital residence constituted the defendant's separate property, (b) failed to equitably distribute certain personal property, the value of certain bank accounts, and the defendant's pension and the value of his IRA account, and (c) awarded the defendant an attorney's fee in the sum of $5,000.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

“[I]n order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution, the nontitled spouse must demonstrate the manner in which his [or her] contributions resulted in the increase in value and the amount of the increase which was attributable to his [or her] efforts” ( Embury v. Embury, 49 A.D.3d 802, 804, 854 N.Y.S.2d 502 [citations and internal quotation marks omitted]; see Price v. Price, 69 N.Y.2d 8, 18, 511 N.Y.S.2d 219, 503 N.E.2d 684;Imhof v. Imhof, 259 A.D.2d 666, 667, 686 N.Y.S.2d 825). Here, although the appellant does not take issue with the Supreme Court's determination that the marital residence is the separate property of the defendant, she argues that she is entitled to a portion of the appreciation in its value over the course of the marriage. Contrary to the appellant's contention, she failed to sustain her burden of demonstrating the manner in which her contributions resulted in the increase in the value of the marital residence over the course of the marriage ( see Embury v. Embury, 49 A.D.3d at 804, 854 N.Y.S.2d 502;cf. Imhof v. Imhof, 259 A.D.2d at 667, 686 N.Y.S.2d 825). Accordingly, the Supreme Court properly determined that the appreciation in the value of the marital residence constituted the defendant's separate property.

With respect to certain personal property and bank accounts, and the defendant's pension and IRA account, the Supreme Court providently exercised its discretion in evaluating the credibility of the witnesses in making its equitable distribution determination after a nonjury trial, and the court's assessment of the credibility of the witnesses is entitled to great weight on appeal ( see Scher v. Scher, 91 A.D.3d 842, 846, 938 N.Y.S.2d 317;Schwartz v. Schwartz, 67 A.D.3d 989, 990, 890 N.Y.S.2d 71). Under the circumstances here, we decline to disturb the Supreme Court's determination with respect to the equitable distribution of that property.

“It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion” ( Pignataro v. Galarzia, 303 A.D.2d 667, 667–668, 757 N.Y.S.2d 76;see Riccio v. NHT Owners, LLC, 79 A.D.3d 998, 1000, 914 N.Y.S.2d 238;Hutchinson v....