Imhof v. Imhof
| Decision Date | 22 March 1999 |
| Citation | 259 A.D.2d 666,686 N.Y.S.2d 825 |
| Parties | VIOLA T. IMHOF, Respondent-Appellant,<BR>v.<BR>WILLIAM J. IMHOF, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bracken, J. P., Sullivan, Friedmann and Florio, JJ., concur.
Ordered that the judgment is modified by (1) deleting the provision thereof directing the defendant husband to pay the sum of $210.56 per week for child support retroactive from January 19, 1993, to December 30, 1997, (2) deleting the provision thereof directing that the defendant husband shall retain ownership of the residence in Alford, Massachusetts, and (3) deleting the provision thereof directing that the defendant husband shall receive the money held in escrow by his attorney and shall receive the sum of $3,000 from the monthly mortgage payments until he has received a full credit in the sum of $62,852.84 for his separate property contribution to the parties' business; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court Suffolk County for a redetermination of the defendant husband's child support obligation and the plaintiff wife's share in the appreciation of the value of the property in Alford, Massachusetts.
The court properly distributed the proceeds of the sale of the marital residence. While a spouse may be entitled to a share of the appreciation in the value of the marital residence (see, Domestic Relations Law § 236 [B] [1] [d] [3]), he or she must demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his or her efforts (cf., Elmaleh v Elmaleh, 184 AD2d 544; Fitzgibbon v Fitzgibbon, 161 AD2d 619). Here, in addition to her contributions as a homemaker and mother, the wife contributed equally to the maintenance of the home during the 20-year marriage (see, Lagnena v Lagnena, 215 AD2d 445).
In light of the fact that funds from joint accounts were contributed to the maintenance and improvement of the Alford, Massachusetts residence, the appreciation in value of the property constituted marital property in which the wife was entitled to share (see, Hartog v Hartog, 85 NY2d 36).
The husband is not entitled to the court's award of $62,852.84, representing a portion of his separate property contributions to the parties' business. Separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to...
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