Foxx v. Foxx

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAIN
• Citation: Foxx v. Foxx, 494 N.Y.S.2d 446, 114 A.D.2d 605 (N.Y. App. Div. 1985)
• Decision Date: 17 October 1985
• Parties: Shirley J. FOXX, Respondent, v. Charles H. FOXX, Appellant.

Page 446

494 N.Y.S.2d 446

114 A.D.2d 605

Shirley J. FOXX, Respondent, v. Charles H. FOXX, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 17, 1985.

O'Connell & Wolfe (Cynthia O'Connell, of counsel), Plattsburgh, for appellant.

Lewis, Bell & Niles (John F. Niles, of counsel), Plattsburgh, for respondent.

Before MAHONEY, P.J., and MAIN, CASEY, YESAWICH and HARVEY, JJ.

MAIN, Justice.

Appeals (1) from a judgment of the Supreme Court ordering, inter alia, equitable distribution of the parties' marital property, entered August 2, 1984 in Clinton County, upon a decision of the court at Trial Term (Doran, J.), without a jury, and (2) from a judgment of said court, entered September 27, 1984 in Clinton County, which, inter alia, denied defendant credit for overpayment in retroactive maintenance and child support awards.

After the parties were divorced, a trial was conducted with regard to equitable distribution of the marital property. Trial Term's decision and addenda thereto resulted in an equitable distribution judgment dated July 26, 1984. As part of this judgment, defendant was directed to pay $2,500 of plaintiff's counsel fees. In addition, the judgment contained a provision whereby defendant was to receive a hearing on the issue of whether he was entitled to credit on his support and maintenance obligations as a result of alleged overpayments of support and maintenance made to plaintiff in the past.

At the hearing that followed, in addition to hearing testimony on this issue, Trial Term heard testimony on a dispute concerning a credit card debt, which resulted from plaintiff taking the parties' three children on a trip to Florida. By judgment dated September 25, 1984, defendant was denied credit on his support and maintenance obligation with respect to alleged overpayments made in the past and was held responsible for three fourths of the disputed credit card debt. This appeal by defendant ensued.

Defendant first argues that Trial Term erred in its award of equitable distribution. This contention is without merit. Equitable distribution presents matters of fact to be resolved by the trial court, and the trial court's resolution of such factual issues and its distribution of property should not be disturbed unless it can be shown that the court abused its discretion in so doing (see, Matter of Ward v. Ward, 94 A.D.2d 908, 909, 463 N.Y.S.2d 634). In view of the court's award to defendant of a 1981 Toyota automobile, a 1968 truck and shares of corporate stock options, counterbalancing its award to plaintiff of a 1980 Toyota automobile, a 1972 Buick automobile and Hummel and Kennedy half-dollar collections, we find no abuse of discretion in Trial Term's equitable distribution.

We reach a similar conclusion with respect to the credit card debt incurred as a result of plaintiff's trip to Florida with the parties' children. There was a conflict in testimony with regard to this debt. Plaintiff maintained that defendant had agreed to finance the vacation for the three children but not for her, while defendant testified that, although he had originally agreed to finance the vacation for the children, he later revoked that offer. Because this problem was one centering on the credibility of the witnesses at trial, we will not disturb Trial Term's resolution of the issue in favor of plaintiff (see, Mitchell v. Mitchell, 111 A.D.2d 485, 488 N.Y.S.2d 895).

Defendant next argues that Trial Term erred in failing to credit his support and maintenance obligation by the amount of alleged overpayments made to plaintiff in the past. Specifically, he asserts that, from August 1982, when the divorce action was commenced, to July 1983, when he moved out of the marital residence, he made overpayments for the maintenance of his wife and support of his children that should have resulted in a credit toward his support and maintenance obligation during the period from August 1983 to August...