Marlinski v. Marlinski

Citation2013 N.Y. Slip Op. 07291,111 A.D.3d 1268,974 N.Y.S.2d 200
PartiesGeorge R. MARLINSKI, Plaintiff–Respondent, v. Nancy A. MARLINSKI, Defendant–Appellant.
Decision Date08 November 2013
CourtNew York Supreme Court Appellate Division

111 A.D.3d 1268
974 N.Y.S.2d 200
2013 N.Y. Slip Op. 07291

George R. MARLINSKI, Plaintiff–Respondent,
v.
Nancy A. MARLINSKI, Defendant–Appellant.

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

Nov. 8, 2013.


[974 N.Y.S.2d 201]


Law Offices of Steven H. Grocott, West Seneca (Steven H. Grocott of Counsel), for Defendant–Appellant.

Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Plaintiff–Respondent.


PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.

MEMORANDUM:

Defendant wife appeals from a judgment of divorce that, inter alia, equitably distributed marital assets, allocated marital debt and calculated the child support for the parties' minor children. Contrary to the wife's contention, Supreme Court did not abuse or improvidently exercise its discretion in determining that plaintiff husband was entitled to an equitable share of the marital funds used to discharge the mortgage on the wife's separate

[974 N.Y.S.2d 202]

residence, which had been used as the marital residence for the entire duration of the marriage. As the court noted in its decision, the parties engaged in “complex financial dealings,” which often consisted of acquiring new lines of credit to pay off existing lines of credit. The testimony at trial established that, although the wife purchased the marital residence prior to the marriage, the parties used marital funds to pay for improvements and to discharge the mortgage on that residence. The husband is thus “entitled to recoup [his] equitable share of the marital funds used to reduce the indebtedness and pay for improvements to the marital abode” ( Massimi v. Massimi, 35 A.D.3d 400, 402, 825 N.Y.S.2d 262,lv. denied9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252;see Markopoulos v. Markopoulos, 274 A.D.2d 457, 458–459, 710 N.Y.S.2d 636;Zelnik v. Zelnik, 169 A.D.2d 317, 330, 573 N.Y.S.2d 261).

We agree with the wife, however, that the court abused it discretion in awarding the husband $3,000, which represented one-half of the parties' 2008 tax refund. The entire tax refund had been used to pay down debt on a Discover Card line of credit. While it is undisputed that, after the divorce action was commenced, the wife took a cash advance from the Discover Card line of credit and deposited the money into her separate checking account, the evidence at trial established that the wife used that money to make payments toward marital debt. We thus conclude that the Discover Card debt was marital debt, and the husband was not entitled to credit for his share of the marital funds that were used to reduce that debt. We further conclude that the court abused its discretion in awarding the husband $569, the amount withdrawn by the wife from the parties' joint checking account in September 2008 and January 2009. The evidence at trial established that the wife used the money for household bills and also to reduce the Discover Card debt. We therefore modify the judgment accordingly.

Contrary to the wife's contention, the court did not err in vacating the child support and maintenance provisions of the parties' October 2009 stipulation. In that stipulation, the parties had agreed to impute income to the wife in the amount of $15,000, and the husband had agreed to maintenance and child support awards to the wife based on that imputed income. Although “[s]tipulations of settlement are favored by the courts and not lightly cast aside” ( Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;see Krupski v. Krupski, 168 A.D.2d 942, 943, 564 N.Y.S.2d 896,lv. denied77 N.Y.2d 804, 568 N.Y.S.2d 912, 571 N.E.2d 82;see generallyCPLR 2104), “[a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching” ( Cruciata v. Cruciata, 10 A.D.3d 349, 350, 780 N.Y.S.2d 761;see Krupski, 168 A.D.2d at 943, 564 N.Y.S.2d 896). We agree with the court that “a reasonable inference exists that the [wife did not] fully disclose[ ] h[er] financial assets ..., and, as a result, the terms of the agreement were so inequitable as to be manifestly unfair to the [husband]” ( Cruciata, 10 A.D.3d at 350, 780 N.Y.S.2d 761;see Chapin v. Chapin, 12 A.D.3d 550, 551, 786 N.Y.S.2d 65;cf. Label v. Label, 70 A.D.3d 898, 900, 895 N.Y.S.2d 192;see also Cervera v. Bressler, 85 A.D.3d 839, 841–842, 925 N.Y.S.2d 581). It is undisputed that the wife had not been employed outside the home since the birth of the parties' children, but it is likewise undisputed that she had inherited large sums of

[974 N.Y.S.2d 203]

money during the course of the marriage. Moreover, the wife failed to disclose her significant stock earnings, which, by October 2009, had totaled over $48,000 for that year. By the end of 2009, the wife had an adjusted gross income of $121,901. Thus, the wife had over $100,000 more in income than was imputed to her in the stipulation, and her income was more than two times what the husband had earned in any of the years before the stipulation. We thus conclude that, regardless whether the wife can be said to...

To continue reading

Request your trial
7 cases
  • Fermon v. Fermon
    • United States
    • New York Supreme Court — Appellate Division
    • January 7, 2016
    ...when, as the wife belatedly discovered, he had accepted a position that paid $170,000 a year plus bonuses (see Marlinski v. Marlinski, 111 A.D.3d 1268, 1270, 974 N.Y.S.2d 200 2013; Chapin v. Chapin, 12 A.D.3d 550, 551, 786 N.Y.S.2d 65 2004 ). 135 A.D.3d 1048 Supreme Court therefore acted ap......
  • Delsignore v. Delsignore
    • United States
    • New York Supreme Court — Appellate Division
    • November 13, 2015
    ...most recent federal income tax return’ ” ( Matter of Moran v. Grillo, 44 A.D.3d 859, 860, 843 N.Y.S.2d 674; see Marlinski v. Marlinski, 111 A.D.3d 1268, 1270, 974 N.Y.S.2d 200). Although a support magistrate is “also permitted ... to consider current income figures for the tax year not yet ......
  • Delsignore v. Delsignore
    • United States
    • New York Supreme Court — Appellate Division
    • November 13, 2015
    ...most recent federal income tax return’ ” (Matter of Moran v. Grillo, 44 A.D.3d 859, 860, 843 N.Y.S.2d 674 ; see Marlinski v. Marlinski, 111 A.D.3d 1268, 1270, 974 N.Y.S.2d 200 ). Although a support magistrate is “also permitted ... to consider current income figures for the tax year not yet......
  • Rennock v. Rennock
    • United States
    • New York Supreme Court — Appellate Division
    • March 31, 2022
    ...gains in assessing that year's income for CSSA purposes, was a provident exercise of discretion (see e.g. Marlinksi v. Marlinski, 111 A.D.3d 1268, 974 N.Y.S.2d 200 [4th Dept. 1993] ). The Special Referee, contrary to the husband's assertions, canvassed his income from other years and, as it......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT