Gonzalez v. Gonzalez

Decision Date04 February 2002
Citation737 N.Y.S.2d 111,291 A.D.2d 373
PartiesOTILIO GONZALEZ, Respondent,<BR>v.<BR>ALICE GONZALEZ, Appellant.
CourtNew York Supreme Court — Appellate Division

Florio, J.P., Smith, McGinity and Crane, JJ., concur.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the amended judgment; and it is further,

Ordered that the amended judgment is reversed insofar as appealed from, on the law and the facts, by (1) deleting the provision thereof directing that the proceeds of the sale of the marital residence be divided equally between the parties, and substituting therefor a provision directing that, upon the sale of the marital residence, the defendant receive $54,000 before the remaining proceeds are divided evenly between the parties, and (2) deleting the provision thereof directing the defendant to pay the plaintiff the sum of $2,000 taken from the parties joint account; and it is further,

Ordered that the appellant is awarded one bill of costs.

The marital residence was purchased after the parties' marriage and was therefore subject to equitable distribution (see, Domestic Relations Law § 236 [B] [1] [c]). The record indicates that the appellant contributed $54,000 in separate property to the purchase of the residence. The Supreme Court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset (see, Robertson v Robertson, 186 AD2d 124, 125; Zago v Zago, 177 AD2d 691, 692; McAlpine v McAlpine, 176 AD2d 285, 287).

The appellant demonstrated that she used the funds she withdrew from the parties' joint account to pay legitimate expenses, which does not constitute a waste or dissipation of marital assets (see, Harbour v Harbour, 227 AD2d 882, 883-884). Accordingly, the respondent is not entitled to a credit with respect thereto.

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8 cases
  • Yuliano v. Yuliano
    • United States
    • New York Supreme Court — Appellate Division
    • September 11, 2019
    ...from those accounts subsequent to the commencement of this action were used to pay "legitimate expenses" (cf. Gonzalez v. Gonzalez, 291 A.D.2d 373, 374, 737 N.Y.S.2d 111 ), the defendant should have received a credit of one-half of the balances in those accounts as of the date of commenceme......
  • Noble v. Noble
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 2010
    ...funds into the marital residence ( see Pulver v. Pulver, 40 A.D.3d 1315, 1320, 837 N.Y.S.2d 369 [2007]; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374, 737 N.Y.S.2d 111 [2002]; Mink v. Mink, 163 A.D.2d 748, 749, 558 N.Y.S.2d 329 [1990] ). Defendant's contention that Supreme Court engaged inimpro......
  • Haggerty v. Haggerty
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 2019
    ...marital expenses (see Pudlewski v. Pudlewski, 309 A.D.2d 1296, 1297, 765 N.Y.S.2d 570 [4th Dept. 2003] ; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374, 737 N.Y.S.2d 111 [2d Dept. 2002] ). Plaintiff further contends that the court erred in conditioning her ability to claim one of the parties' tw......
  • Eschemuller v. Eschemuller
    • United States
    • New York Supreme Court — Appellate Division
    • December 26, 2018
    ...Epstein v. Messner, 73 A.D.3d 843, 846, 900 N.Y.S.2d 454 ; Rand v. Rand, 29 A.D.3d 976, 976, 816 N.Y.S.2d 542 ; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374, 737 N.Y.S.2d 111 ). Contrary to the defendant's contention, the record fails to establish the plaintiff's wasteful dissipation of marita......
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