Girgenti v. Girgenti

• Decision Date: 22 February 2011
• Citation: Girgenti v. Girgenti, 917 N.Y.S.2d 258, 81 A.D.3d 886 (N.Y. App. Div. 2011)
• Parties: Diane GIRGENTI, appellant, v. Albert GIRGENTI, respondent.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 258

81 A.D.3d 886

Diane GIRGENTI, appellant,

v.Albert GIRGENTI, respondent.

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

Feb. 22, 2011.

Glenn S. Koopersmith, Garden City, N.Y., for appellant.

Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, and L. PRISCILLA HALL, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals,as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Driscoll, J.), entered December 22, 2009, as, after a nonjury trial, failed to award her (1) a distributive share of four parcels of real property acquired by the defendant during the marriage, (2) a distributive share of $320,000 withdrawn by the defendant from a home equity line of credit after the commencement of the action, (3) a distributive share of $424,925 withdrawn by the defendant from his life insurance policy after the commencement of the action, (4) a distributive share of a tax refund for the year 2005, and (5) tax-free maintenance.

ORDERED that the judgment is modified, on the law and the facts, (1) by adding a provision thereto awarding the plaintiff the sum of $3,894,227.50, representing 50% of the value of the four parcels of real property acquired by the defendant during the marriage, (2) by adding a provision thereto awarding the plaintiff the sum of $160,000, representing her share of the proceeds of a home equity loan obtained by the defendant after the commencement of the action, (3) by adding a provision thereto awarding the plaintiff the sum of $212,462.50, representing her share of the proceeds of a life insurance policy withdrawn by the defendant after the commencement of the action, and (4) by adding a provision thereto awarding the plaintiff the sum of $185,759.65, representing her share of the proceeds of a tax refund for the year 2005; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for a recalculation of maintenance, if warranted, and thereafter, for the entry of an appropriate amended judgment.

The parties were married on October 21, 1989. They have three children: Elizabeth, born on January 17, 1992; Louis, born on February 16, 1995; and Diana, born on June 5, 1998.

At the time of the marriage, the defendant (hereinafter the husband) was the sole owner of AVA Pork Products, Inc. (hereinafter AVA), a company which distributed meat. Over the years, the husband's business grew. By 2005, the year this action was commenced, he owned several companies bearing the AVA name. At the time of the marriage, the plaintiff (hereinafter the wife) worked as a substitute teacher. Approximately one year later she obtained a full-time teaching position. However, she stopped working in December 1991, shortly before the birth of the parties' first child. Since that time, her teaching license has expired.

During the marriage, the husband acquired four parcels of real property and placed them under the ownership of several separate corporate entities in which he was the sole shareholder. He sold two of those parcels in 2007, for $535,000 and $300,000,respectively. His corporations continue to own the other two parcels and lease them out. They have been appraised at $2,050,000 and $5,900,000.

The wife commenced this action for a divorce and ancillary relief on November 18, 2005. Prior to the trial, the parties stipulated as to the prices of the parcels which had been sold, as well as to the appraised value of the other two parcels. They also stipulated that, after the commencement of the divorce action, the husband withdrew the sums of $320,000 from the home equity line of credit account (hereinafter the HELOC) and $424,925 from his life insurance policy. Furthermore, the parties stipulated that the wife's position at trial regarding distribution of the husband's business would be that "the value of the AVA business should not be separately distributed," as she was seeking maintenance.

After a two-day hearing, the parties were divorced by judgment entered December 22, 2009. The Supreme Court found that the four parcels of real property acquired by the husband during the marriage were not marital property, but were part of the AVA business, and, since the wife had waived her interest in the husband's business, she was not entitled to distribution of these assets. The Supreme Court also found that the money withdrawn from the HELOC and the life insurance policy was subsequently put into the business and, thus,...