Gundlach v. Gundlach

• Citation: 223 A.D.2d 942,636 N.Y.S.2d 914
• Parties: Susan GUNDLACH, Respondent, v. Gerald E. GUNDLACH, Appellant.
• Decision Date: 25 January 1996
• Court: New York Supreme Court — Appellate Division

Page 914

636 N.Y.S.2d 914

223 A.D.2d 942

Susan GUNDLACH, Respondent, v. Gerald E. GUNDLACH, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 25, 1996.

McNamee, Lochner, Titus & Williams P.C. (Bruce J. Wagner of counsel), Albany, for appellant.

McCarthy & Evanick (Ihor B. Evanick of counsel), Albany, for respondent.

Before MERCURE, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.

CASEY, Justice.

Appeals from a judgment and amended judgment of the Supreme Court (Conway, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered September 29, 1994 and October 20, 1994 in Albany County, upon a decision of the court.

The parties were married in 1977 and have three children. In January 1993, plaintiff commenced this action for divorce based on defendant's alleged cruel and inhuman treatment. After trial, judgment was entered granting plaintiff a divorce and equitable distribution was ordered, by which plaintiff was awarded exclusive use and occupancy of the marital residence until the emancipation of the youngest child and also counsel fees. The judgment was thereafter amended to correct numerical errors and to include a stipulation.

On this appeal, defendant initially claims error in Supreme Court's finding that settlement money which defendant received for personal injuries incurred in an employment-related accident was marital property. The personal injury action was settled for $350,000 on June 19, 1988 and defendant received a net share of $208,198.05. On that same day, defendant deposited that exact sum into a newly opened joint bank account in the names of both plaintiff and defendant. Although compensation for personal injuries is, as defendant alleges, usually considered separate property (Domestic Relations Law § 236[B][1][d][2], a presumption that each party was entitled to an equal share of the deposit arose when defendant deposited the settlement money into a joint account (see, Banking Law § 675[b]; Krinsky v. Krinsky, 208 A.D.2d 599, 600, 618 N.Y.S.2d 36; Giuffre v. Giuffre, 204 A.D.2d 684, 685, 612 N.Y.S.2d 439). This presumption cast the burden on defendant to establish, by clear and convincing proof, that the joint account was created only as a matter of convenience (see, Krinsky v. Krinsky, supra; Giuffre v. Giuffre, supra ). Defendant failed to meet this burden. The evidence of various transfers from the joint account into and out of other accounts confirms plaintiff's testimony that all of the parties' money was handled jointly, regardless of the source. The settlement money was, therefore, marital property with the balance of said account and any interest accumulation subject to equitable distribution (see, Dugue v. Dugue, 172 A.D.2d 974, 975-976, 568 N.Y.S.2d 244).

Defendant further argues that Supreme Court abused its discretion by awarding plaintiff $7,229.36 in counsel fees without a hearing to evaluate the underlying services. In view of the fact that defendant failed to request a hearing or raise any clear objection to the submission of the issue on papers, defendant's argument is untenable. Supreme Court clearly indicated that the award of counsel fees to plaintiff was based upon "the prevailing rates of the Albany area for legal services", plaintiff demonstrated need and the court considered the relevant factors in making the award (see, Domestic Relations Law § 237[d] ). There was, therefore, no abuse of discretion in the award of counsel fees to plaintiff (see, Cardia v. Cardia, 203 A.D.2d 650, 652, 610 N.Y.S.2d 620; see also, Sclafani v. Sclafani, 178 A.D.2d 830, 832, 577 N.Y.S.2d 711).

With respect to defendant's complaint that Supreme Court erred in awarding plaintiff exclusive use and occupancy of the marital home until the parties' youngest child was emancipated, we also find no abuse of discretion. Plaintiff is the custodial parent and the children's roots are in the neighborhood where the marital residence is located. Domestic Relations Law § 236(B)(5)(d)(3) specifically authorizes the court to consider the need of the custodial parent to occupy the marital residence, and such occupancy provides the stable environment that Supreme Court felt was necessary to the children's best interest (see, Carpenter v. Carpenter, 202 A.D.2d 813, 608 N.Y.S.2d 751). We see no abuse of discretion in permitting plaintiff to defer the sale date until the youngest child is emancipated, which will occur no later than that child's 21st birthday and can occur sooner ...