Macaluso v. Macaluso

• Decision Date: 08 January 2015
• Citation: 124 A.D.3d 959,1 N.Y.S.3d 464
• Parties: Claudia MACALUSO, Respondent, v. Anthony MACALUSO, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 959

1 N.Y.S.3d 464

Claudia MACALUSO, Respondent,

v.Anthony MACALUSO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 8, 2015.

Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for appellant.

Catherine E. Stuckart, Binghamton, for respondent.

Before: LAHTINEN, J.P., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.

McCARTHY, J.

Appeal from a judgment of the Supreme Court (Lambert, J.), entered September 11, 2013 in Delaware County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

The parties were married in 1991. Plaintiff (hereinafter the wife) commenced this divorce action in 2011 and, after the parties stipulated to dissolving the marriage under Domestic Relations Law § 170(7), a four-day, nonjury trial was conducted on equitable distribution and spousal maintenance, among other things. Supreme Court issued an order awarding the wife maintenance and dividing the marital property and, thereafter, the court rendered a judgment of divorce that incorporated its prior order. Defendant (hereinafter the husband) appeals.¹

Supreme Court did not err in ordering the equal distribution of two joint bank accounts and a stock portfolio, after finding that they were marital property. The act of transferring separate property into an account held by both spouses " ‘raises a presumption that the funds are marital property to be distributed among the parties according to the principles of equitable distribution’ " ( Fehring v. Fehring, 58 A.D.3d 1061, 1062, 874 N.Y.S.2d 266 [2009], quoting Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686, 736 N.Y.S.2d 453 [2002] ). As to the stock portfolio that the husband claimed to have opened in order to deposit his separate property, the husband's trial testimony revealed that he added the wife to the account so that she could make stock purchases, and she remained on the account and exercised some control over it for roughly half of the marriage. With regard to the joint bank accounts, the husband provided no evidence to rebut the presumption that the accounts were marital and that they were established only as a matter of convenience (see Burnett v. Burnett, 101 A.D.3d 1417, 1419, 956 N.Y.S.2d 655 [2012] ; Murray v. Murray, 101 A.D.3d 1320, 1321–1322, 956 N.Y.S.2d 252 [2012], lv. dismissed 20 N.Y.3d 1085, 965 N.Y.S.2d 74, 987 N.E.2d 635 [2013] ).

We next turn to the husband's Thrift Savings Plan, which was established prior to the marriage and remains in the husband's name. The uncontroverted proof demonstrated that contributions were also made to the plan during the marriage, so at least a portion of the plan constituted marital property. The husband did not offer any proof at trial regarding the value of the separate portion of the plan but, rather, merely indicated that the wife was ineligible to receive any portion of the plan because she had allegedly abandoned him. Inasmuch as the proof was insufficient to enable Supreme Court to determine which portion of the plan was separate and which was marital, the court was entitled to equitably distribute the entirety of the plan (see Zufall v. Zufall, 109 A.D.3d 1135, 1138, 972 N.Y.S.2d 749 [2013], lv. denied 22 N.Y.3d 859, 2014 WL 113961 [2014] ; Ponzi v. Ponzi, 45 A.D.3d 1327, 1327–1328, 845 N.Y.S.2d 605 [2007] ).

We agree, however, with the husband's argument that Supreme Court failed to properly consider what part, if any, of his pension was separate property. The record establishes the husband's starting and ending dates of employment with the United State Postal Service and the date of the parties' marriage, thereby allowing the court to determine which portion of the pension—a defined benefit plan—was earned prior to the marriage and is, therefore, the husband's separate property (see Majauskas v. Majauskas, 61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). Accordingly, we remit the matter to Supreme Court for a determination of the percentage of the pension that is marital property and, thus, may be equitably distributed (see Cameron v. Cameron, 22 A.D.3d 911, 912–913, 802 N.Y.S.2d 542 [2005] ).

Supreme Court erred in finding that the marital residence was marital property and awarding the wife 50% of the home's appraised value minus a $10,000 separate property credit to the husband for the purchase price of the land. Supreme Court credited the wife's testimony that, although the husband purchased the land and constructed a "shell" of a house prior to the marriage, the construction of the residence was not complete until approximately four years after the marriage. The record demonstrates that the vast majority of the improvements occurred during the marriage due, in part, to the wife's contributions of money, time and labor. Nevertheless, for the reasons set forth in Ceravolo v. DeSantis , 125 A.D.3d 113, 113, 1 N.Y.S.3d 471, 2015 WL 94661 [decided herewith], a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Accordingly, the parcel was separate property (see Domestic Relations Law § 236[B][1][d][1] ), which is not subject to equitable distribution (see Domestic Relations Law § 236[B][5] [b] ; compare Domestic Relations Law § 236[B][5][c] ).

Appreciation in value of separate property, from the date of the marriage to the date of commencement of the divorce action, can be considered a marital asset subject to equitable distribution "if the appreciation is due to the contributions or efforts of the nontitled spouse" ( Biagiotti v. Biagiotti, 97 A.D.3d 941, 943, 948 N.Y.S.2d 445 [2012] ; see Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d...