McSparron v. McSparron

• Citation: 190 A.D.2d 74,597 N.Y.S.2d 743
• Parties: Hedy L. McSPARRON, Appellant-Respondent, v. James G. McSPARRON, Respondent-Appellant.
• Decision Date: 06 May 1993
• Court: New York Supreme Court Appellate Division

Page 743

597 N.Y.S.2d 743

190 A.D.2d 74

Hedy L. McSPARRON, Appellant-Respondent, v. James G. McSPARRON, Respondent-Appellant.

Supreme Court, Appellate Division,

Third Department.

May 6, 1993.

Brandes, Weidman & Spatz, P.C. (Joel R. Brandes, Carole L. Weidman and Kenneth S. Sternberg, of counsel), New York City, for appellant-respondent.

Friedman & Manning (Michael P. Friedman, of counsel), Delmar, for respondent-appellant.

Kenneth J. Munnelly, Law Guardian, Delmar, for Mollie McSparron and another.

Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and HARVEY, JJ.

HARVEY, Justice.

Cross appeals from a judgment of the Supreme Court (Harris, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered October 1, 1991 in Albany County, upon a decision of the court.

The parties to this action were married on May 24, 1969, and have two minor children; Mollie (born August 4, 1976) and Jakob (born December 15, 1978). Although neither party worked when they were first married, both had undergraduate degrees. During the course of the marriage, however, defendant acquired a law degree and license and plaintiff ultimately obtained a medical degree and license. At the time of the parties' separation in June or July 1989, defendant was employed by the State as a Deputy First Assistant Attorney-General with the Division of State Counsel and plaintiff was employed by Albany Medical Center as a medical intern. At that time, defendant's income was approximately $97,000 per year while plaintiff's income was approximately $24,000 per year. Plaintiff commenced this action in September 1989 seeking a divorce, equitable distribution and custody of the parties' children. A jury trial was held regarding the divorce and a nonjury trial was held on the issues of equitable distribution and custody.

Thereafter, Supreme Court granted the divorce, awarded custody of Mollie to defendant and Jakob to plaintiff, awarded plaintiff maintenance of $750 biweekly through September 1, 1996 and awarded plaintiff child support of $131 per week. The court also distributed the parties' extensive marital assets which included real estate, bank accounts, bonds, motor vehicles, pension funds and other valuables. In addition, plaintiff's medical license was valued at $903,406 and awarded to her and defendant's law license was valued at $529,363 and awarded to him. A judgment was entered reflecting Supreme Court's decision and the parties now each cross-appeal from certain parts of the judgment.

Both parties challenge the propriety of various aspects of Supreme Court's distribution of the marital assets. Property which is acquired during the marriage is presumed to be marital property (see, Domestic Relations Law § 236[B][1][c]. Notably, a party seeking to overcome this presumption has the burden of proving that the property at issue is separate property (see, Sclafani v. Sclafani, 178 A.D.2d 830, 831, 577 N.Y.S.2d 711).

Initially, we address plaintiff's various arguments alleging that defendant received a disproportionate and undeserved share of the marital assets. Her first claim is that because her mother contributed most of the money toward the majority of the marital assets allegedly for plaintiff's benefit alone, those contributions should have been given greater weight in Supreme Court's division of the marital property (see, Domestic Relations Law § 236[B][5][d][13]. Nevertheless, although there was ample testimony that plaintiff's mother did contribute large sums of money to purchase various marital assets, almost all of this money was either commingled in the parties' joint account or used to purchase jointly held property. This use of the moneys evidences plaintiff's mother's "clear intention to share it equally with [defendant]" (Brown v. Brown, 148 A.D.2d 377, 381, 538 N.Y.S.2d 945), which warrants treating the money and assets bought with it as marital property (see, Price v. Price, 69 N.Y.2d 8, 15, 511 N.Y.S.2d 219, 503 N.E.2d 684; Glazer v. Glazer, 190 A.D.2d 951, 952, 593 N.Y.S.2d 905; Di Nardo v. Di Nardo, 144 A.D.2d 906, 907, 534 N.Y.S.2d 25). Regarding plaintiff's assertion that Supreme Court erred in considering $40,000 in bearer bonds as a marital asset because they were allegedly her mother's property, we note that the only evidence at trial on this issue was plaintiff's testimony. Although plaintiff did state that the bonds belonged to her mother, she admitted that she kept the bonds in a safety deposit box her mother did not have access to. She also testified that she clipped the bonds when she was living with defendant and sometimes placed the money in their joint account. Given this inconsistent testimony, we conclude that plaintiff failed to meet her burden of clearly establishing that the bonds were not marital property (see, Vogel v. Vogel, 156 A.D.2d 671, 673, 549 N.Y.S.2d 438; Lord v. Lord, 124 A.D.2d 930, 931, 508 N.Y.S.2d 676).

We turn now to the issue of Supreme Court's distribution of the proceeds of the sale of certain jointly owned marital property located at 567 Morris Street in the City of Albany. This property was sold in June 1989 for $128,000, ¹ and the whereabouts of the proceeds of the sale is the source of some dispute and confusion. However, the figures given by the parties result in that approximate amount when examined closely. After closing expenses and other debts were paid, a net amount remained which the parties and Supreme Court agreed would be split equally. Although the parties dispute the actual net amount of the sale, we have little difficulty in agreeing with Supreme Court that the net amount was $89,114, with each party entitled to approximately $44,557. ² The record indicates that, after the closing, plaintiff placed $21,724 in a joint certificate of deposit at Albany Savings Bank on June 17, 1989 and she placed another $60,000 in a joint certificate of deposit at Home & City Savings Bank opened July 20, 1989. On August 8, 1989, pursuant to an agreement with defendant's attorney, plaintiff withdrew $60,000 from the Home & City Savings Bank certificate of deposit and sent defendant a check for $36,399. Notably, because Supreme Court determined that both parties were entitled to $44,557, it determined that defendant was entitled to a credit of $8,167.50. Of the amount remaining from the $60,000 certificate of deposit, plaintiff placed $11,849 in a joint account at Home & City Savings Bank and $10,899.71 in her account at Home & City Savings Bank.

Plaintiff does not challenge Supreme Court's finding that the net proceeds from the sale of the Morris Street property were marital property. Instead, she argues that the court awarded the same asset to her twice by stating that she would receive half the proceeds and she would separately be awarded bank accounts that actually contained the traceable proceeds of her portion of the sale. As a result plaintiff alleges that her part of the money was "double counted", meaning that, in the final accounting, defendant must have received a "disproportionate undeserved share of other assets". We have examined this issue as closely as possible, given the difficulty of following the proceeds of the sale from the information on the record and the lack of specificity in Supreme Court's conclusions on this issue. We conclude that there may be some merit to plaintiff's contentions. In the list of assets awarded to the parties, Supreme Court does not list the $36,397.50 plaintiff gave to defendant from the $60,000, nor does it appear to list the remainder of moneys from the $60,000 certificate of deposit that totaled over $22,748 and were placed in Home & City Savings Bank accounts by plaintiff. Nevertheless, the court separately awarded these unspecified Albany Savings Bank accounts containing approximately $30,000 to plaintiff even though it appears from the record that at least some of this money is traceable to the original June 17, 1989 certificate of deposit and it is possible that the remaining amount is also traceable to the sale. Because it is impossible to tell from Supreme Court's decision what connection the $30,000 account has to the Morris Street property, this issue should be explored and explained in better detail on remittal. If all or part of that money can reasonably be traced to the sale, then it should not be listed as a separate asset in the same way that the remainder of the net proceeds was not.

Next, we consider the distribution of the parties' professional licenses. Turning first to the issue of plaintiff's medical license which she obtained immediately prior to the commencement of this action, we note that Supreme Court found it to be marital property valued at $903,406 and awarded it to plaintiff. Despite plaintiff's contentions otherwise, defendant did not waive any interest in plaintiff's medical license because the statement of proposed disposition where such a course was considered was not binding and therefore did not constitute a waiver (see, 22 NYCRR 202.16[d]. Plaintiff's medical license is marital property because it is an item "of economic value that [was] acquired during the marriage" (Di Caprio v. Di Caprio, 162 A.D.2d 944, 945, 556 N.Y.S.2d 1011, lv. denied 77 N.Y.2d 802, 566 N.Y.S.2d 587, 567 N.E.2d 981; see, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712; Finocchio v. Finocchio, 162 A.D.2d 1044, 1045, 556 N.Y.S.2d 1007). Supreme Court properly found that defendant was entitled to a share of the license because he contributed to the functioning of the household while plaintiff attended medical school. In our opinion, however, we agree with plaintiff's expert that the value of plaintiff's license is $669,618. It is an undisputed fact that plaintiff has always planned on joining the staff of a local health maintenance organization. By doing so, her income would not reach that envisaged by defendant's expert. She has no record that would indicate the enhanced...