Michaelessi v. Michaelessi

• Court: New York Supreme Court — Appellate Division
• Citation: Michaelessi v. Michaelessi, 59 A.D.3d 688, 874 N.Y.S.2d 207, 2009 NY Slip Op 1452 (N.Y. App. Div. 2009)
• Decision Date: 24 February 2009
• Docket Number: 2007-07341.
• Parties: ADAYMEE MICHAELESSI, Appellant, v. CHARLES MICHAELESSI, Respondent.

59 A.D.3d 688

874 N.Y.S.2d 207

2009 NY Slip Op 01452

ADAYMEE MICHAELESSI, Appellant, v. CHARLES MICHAELESSI, Respondent.

2007-07341.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 24, 2009.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of a judgment of the Supreme Court, Queens County (Geller, Special Referee), entered June 20, 2007, as, upon a decision of the same court dated January 23, 2007, made after a nonjury trial, awarded her only 25% of the value of the defendant's pension

and failed to award her any portion of a joint bank account and an individual retirement account held in the defendant's name.

Ordered that the judgment is modified, on the law, by adding thereto provisions (1) awarding the plaintiff the sum of $5,165.50, representing 50% of the value of the joint bank account, as valued at the date of commencement of the action, and (2) awarding the plaintiff 50% of the value of the individual retirement account, valued as of the date the equitable distribution issues were tried; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a determination of the value of the Individual Retirement account as of January 31, 2006, and the entry thereafter of an appropriate amended judgment.

"The trial court `is vested with broad discretion in making an equitable distribution of marital property' . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" (Saleh v Saleh, 40 AD3d 617, 617-618 [2007], quoting Bossard v Bossard, 199 AD2d 971, 971 [1993]). Equitable distribution does not necessarily mean equal distribution (see Evans v Evans, 57 AD3d 718 [2008]; Greene v Greene, 250 AD2d 572 [1998]).

The Supreme Court providently exercised its discretion in awarding the plaintiff 25% of the value of the defendant's pension. The plaintiff admitted that she did not truthfully fill out her net worth statement, and failed to provide an adequate explanation as to how she was able to afford to pay for a significant elective-surgical procedure with her claimed level of assets. "Secreting assets in order to prevent the trial court from making an equitable distribution of property supports a finding of economic fault. Once such a finding is made, the trial court must consider the missing assets in making it distributive award" (Contino v Contino, 140 AD2d 662, 662-663 [1988] [citations omitted]). The Supreme Court providently exercised its discretion in taking the missing assets into account and limiting the plaintiff's share of the value of the defendant's pension to 25%.

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