Kobylack v. Kobylack
| Decision Date | 01 August 1983 |
| Citation | 96 A.D.2d 831,465 N.Y.S.2d 581 |
| Parties | William KOBYLACK, Respondent, v. Nancy KOBYLACK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stephens & Buderwitz, White Plains (Joseph J. Buderwitz, Jr., James J. Duggan and Joseph M. Buderwitz, White Plains, of counsel), and Joseph D. Errico, White Plains, for appellant.
Marshall S. Goldman, P.C., White Plains, for respondent.
Before MOLLEN, P.J., and TITONE, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County, dated September 22, 1981, 110 Misc.2d 402, 442 N.Y.S.2d 392, as, after a nonjury trial, (1) ordered equitable distribution of the marital property with 72 per cent of the value thereof to plaintiff and 28 per cent to defendant; (2) applied the afore-mentioned proportions to the marital residence, which was owned jointly by the parties as tenants by the entirety, and directed plaintiff to pay to the defendant a distributive award of $12,983.71, representing her share of the value of that property; (3) determined that defendant is not entitled to any of the money contained in plaintiff's profit-sharing savings plan maintained through his employer, known as a "Thrift Fund"; and (4) denied defendant's application for counsel fees and determined that each party shall be responsible for the payment of his or her own counsel fees.
Judgment modified, on the law, by deleting the fifth decretal paragraph thereof and substituting therefor a provision directing plaintiff to pay to defendant a distributive award of $20,031.77, representing her 28 per cent share of the present cash value of $71,542.02 of his "Thrift Fund", as of December 31, 1980. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.
We conclude that Special Term correctly applied the principles of the equitable distribution provisions of Part B of section 236 of the Domestic Relations Law, which govern the instant case. Special Term set forth the factors enumerated in the Domestic Relations Law ), and the facts relevant thereto, which it considered in arriving at the formula for the distribution of the marital property (see Domestic Relations Law, § 236, Part B, subd. 5, par. g; Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240 [2nd Dept., 1983] ). The determination by Special Term that the major relevant consideration in the equitable distribution of the parties' marital property was their relative economic contributions to the marriage (see Domestic Relations Law, § 236, Part B, subd. 5, par. d, cl. [1] ), was proper in the context of the facts and circumstances of the instant case. Both of the parties were employed full time throughout this childless marriage of approximately 10 years' duration and Special Term determined that they contributed to the household expenses and to the acquisition and maintenance of the marital property in accordance with their respective earnings. Special Term arrived at a formula, whereby it distributed 72 per cent of the value of the marital property to plaintiff and 28 per cent to defendant, based upon the average ratio of the parties' earnings during the marriage, as revealed by their income tax returns.
Moreover, Special Term correctly applied that formula to arrive at a distributive award representing defendant's share of the value of the marital residence, which was owned jointly by the parties as tenants by the entirety. In the absence of any indication by the Legislature to the contrary, we conclude that the marital property "acquired by either or both spouses during the marriage * * * regardless of the form in which title is held" (Domestic Relations Law, § 236, Part B, subd. 1, par. c), is subject to equitable distribution in accordance with the factors set forth in section 236, Part B of the Domestic Relations Law ). This...
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