Lauricella v. Lauricella

• Decision Date: 03 October 1988
• Citation: Lauricella v. Lauricella, 532 N.Y.S.2d 907, 143 A.D.2d 642 (N.Y. App. Div. 1988)
• Parties: Alphonse LAURICELLA, Appellant, v. Anna LAURICELLA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 907

532 N.Y.S.2d 907

143 A.D.2d 642

Alphonse LAURICELLA, Appellant, v. Anna LAURICELLA, Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 3, 1988.

Barbara F. Branch, Piermont, for appellant.

Glickman & McAlevey, New City City (Anne L. Glickman, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Rockland County (Kelly, J.) entered May 29, 1987, as (1) awarded the defendant wife one-half the appreciated value of certain United States Savings Bonds, (2) determined that his contribution to the marital residence from premarital assets was only $28,300, (3) failed to consider various savings accounts as his separate property, (4) awarded the wife 50% of a certain fraction (19/65) of his pension and 50% of his Individual Retirement Account (hereinafter IRA), (5) failed to award him a portion of the wife's pension fund and IRA, (6) directed him to obtain an additional life insurance policy in the amount of $45,500 naming the wife as beneficiary, (7) directed him to pay maintenance in the amount of $175 a week for five years and child support in the amount of $100 per week, and (8) directed him to pay the wife's counsel fees in the amount of $8,500.

ORDERED that the judgment is modified by (a) deleting the fifth decretal paragraph thereof and substituting therefor a provision directing the parties to divide equally between them the amounts, including interest to date, in the two IRA's listed in the wife's net worth statement dated September 3, 1985, (b) substituting the number 18 for the number 19 as the numerat of the fraction in the seventh decretal paragraph, (c) vacating subsection b of the tenth decretal paragraph thereof and substituting therefor a provision crediting the plaintiff husband with the sum of $31,000 as his contribution to the purchase of the marital residence from premarital assets and crediting the wife with a contribution of $2,500, which amounts shall be subtracted from the proceeds of the sale of the marital home with the remainder to be divided equally between the parties, (d) adding a provision to the eighteenth decretal paragraph thereof which would permit the husband, in the alternative, to name the wife as a beneficiary of his existing life insurance policy and to increase the amount of the policy to meet his child support and maintenance obligations, and (e) deleting the twentieth decretal paragraph thereof; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a hearing on any application for counsel fees which was pending at the time judgment was entered.

The parties were married in 1967 and have two children, born in 1968 and 1970 respectively. This action was commenced by the husband in 1985 for a divorce and equitable distribution of marital property. Following a trial, the wife was granted a divorce on the grounds of cruel and inhuman treatment and was awarded custody of the children. The issues raised on appeal concern the distribution of the parties' assets and the award of maintenance and child support.

The husband contends that the entire appreciation in value of certain United States Savings Bonds should have been considered his separate property under Domestic Relations Law § 236(B)(1)(d)(3). He does not dispute that, in about 1970, he had caused the wife's name to be substituted for that of his mother on the bonds. This conveyance of an interest in the bonds to the wife converted the property to marital property (see, e.g., Coffey v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74; Parsons v. Parsons, 101 A.D.2d 1017, 476 N.Y.S.2d 708) and entitled the wife to a share of the bonds' appreciated value. The court properly credited the husband for his contribution to the creation of this marital asset (see, Coffey v. Coffey, supra ) and divided the remaining value of the bonds equally. We find that the credit of $28,000 awarded to the husband was fair, considering that the bonds had in all likelihood matured to a total face value of approximately that amount in 1970. The husband is not in a position to effectively dispute the court's calculation of the amount of the credit due him since he offered no evidence on the issue but instead claimed during the trial that the bonds had all been redeemed prior to the trial, a claim which the court did not credit and which has not been argued on appeal.

The husband contends that he is entitled to a credit of at least $51,000 for his contribution from premarital savings to the purchase and improvement of the marital residence. The closing statement indicates that the house was purchased in 1970 for about $46,000, of which $15,000 was provided by a mortgage. The wife did not dispute that the remaining $31,000 was provided from the husband's premarital savings. Accordingly, the husband...