Garrison-Horgan v. Horgan

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before GREEN
• Citation: Garrison-Horgan v. Horgan, 651 N.Y.S.2d 774, 234 A.D.2d 957 (N.Y. App. Div. 1996)
• Decision Date: 30 December 1996
• Docket Number: GARRISON-HORGA,A
• Parties: Brigitte M.ppellant, v. Francis J. HORGAN, Jr., Respondent.

Page 774

651 N.Y.S.2d 774

234 A.D.2d 957

Brigitte M. GARRISON-HORGAN, Appellant, v. Francis J. HORGAN, Jr., Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Law Office of C. Lewis Abelove by C. Lewis Abelove, Utica, for Appellant.

Lewis and Caldwell by Randal Caldwell, New Hartford, for Respondent.

Before GREEN, J.P., and PINE, LAWTON, DOERR and BOEHM, JJ.

MEMORANDUM.

The parties were married on October 2, 1982, and physically separated in September 1993. There are no children of the marriage. On December 16, 1993, plaintiff commenced this action for a divorce. After a trial, Supreme Court granted plaintiff a divorce and decreed that defendant convey his interest in the marital residence, valued at $150,000, to plaintiff, that plaintiff assume responsibility for payment of the mortgages on the property totaling approximately $48,000, and that she pay defendant $35,000, representing his net interest in the property. The court determined that plaintiff was not entitled to an interest in defendant's pension, which began to accrue in 1964, and that defendant was not entitled to an interest in a PhD degree that plaintiff had obtained during the marriage, nor to her pension that began accruing in 1993. The court found that defendant's pension and plaintiff's degree were marital property and that the value of defendant's interest in plaintiff's degree was at least as much as the value of plaintiff's interest in defendant's pension; it therefore made no award with respect to either asset. Plaintiff appeals from that part of the judgment that denied her an interest in defendant's pension, and required her to pay $35,000 for defendant's interest in the marital residence and to assume the responsibility for the mortgages on the property.

The court determined that plaintiff's degree had enabled plaintiff to double her income potential but made no calculation of the value of the degree. Further, the record is barren of any evidence regarding plaintiff's equitable interest in defendant's pension, which continued to accrue during the parties' 11-year marriage (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15). In the absence of evidence of value of either asset, the court erred in setting off the value of plaintiff's interest in defendant's pension against the value of defendant's interest in plaintiff's degree. Because we cannot determine the value of either defendant's pension or plaintiff's degree from the record before us, we remit the matter to Supreme Court for that purpose (see, Dempster v. Dempster, 204 A.D.2d 1070, 1071, 613 N.Y.S.2d 78; Gorzalkowski v. Gorzalkowski, 190 A.D.2d 1067, 594 N.Y.S.2d 1015; Norgauer v. Norgauer, 126 A.D.2d 957, 958, 511 N.Y.S.2d 731). We also remit for the court to consider the tax consequences to the parties resulting from the distribution of marital property, as required by Domestic Relations Law § 236(B)(5)(d), (g) (see, Gorzalkowski v. Gorzalkowski, supra, at 1067, 594 N.Y.S.2d...