Miller v. Miller

• Decision Date: 26 February 2004
• Docket Number: 94522.
• Citation: 772 N.Y.S.2d 413,4 A.D.3d 718,2004 NY Slip Op 01298
• Parties: MARC W. MILLER, Appellant-Respondent, v. COLLEEN K. MILLER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 718

772 N.Y.S.2d 413

2004 NY Slip Op 01298

MARC W. MILLER, Appellant-Respondent, v. COLLEEN K. MILLER, Respondent-Appellant.

94522.

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

February 26, 2004.

Cross appeals from a judgment of the Supreme Court (Kavanagh, J.), entered January 17, 2003 in Ulster County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court.

LAHTINEN, J.

The parties were married in 1982 and have no children. Plaintiff is an attorney and also invests in real estate. He earned his law degree prior to the marriage. Defendant holds a Master's degree in fine arts and is the Director of the Center for Photography in the Town of Woodstock, Ulster County. In 1999, plaintiff earned $135,399 and defendant earned $31,000. Plaintiff was 54 years old and defendant was 51 years old at the time of trial.

At the beginning of their marriage, the parties agreed to keep all of their finances separate and distinct, and they adhered to this agreement. Plaintiff commenced this divorce action in November 1999. The parties entered into a written opting out agreement regarding the division of much of their property. However, they were unable to resolve some issues, centering primarily around various investment real estate, the marital home and some works of art.

Following a trial, Supreme Court found that the investment property was plaintiff's separate property, but awarded defendant 20% of the net value of that property. The court deemed the marital home to be plaintiff's separate property, finding that he purchased it before the marriage and made all the payments for the mortgage and general maintenance from his separate funds. The disputed art collections, valued at about $78,000, were awarded to defendant. Both parties appeal.

Where property is separate, the nontitled spouse may nevertheless be awarded part of the appreciated value occurring during the marriage when the nontitled spouse made indirect contributions and the titled spouse's role in the property's appreciation was not merely passive (see Hartog v Hartog, 85 NY2d 36, 45-46 [1995]; Price v Price, 69 NY2d 8, 11 [1986]; Lawson v Lawson, 288 AD2d 795, 796 [2001]). Here, the parties agreed from the outset not to treat the marriage as an economic partnership, there are no children of the marriage, and they pursued their own careers and interests during the marriage. Under these unique circumstances—with the parties conducting themselves during the marriage inconsistent with the typical "economic partnership"—and in light of a lack of convincing proof of indirect contributions facilitating the titled spouse's role regarding separate investment property (some of which grew only passively), we find no basis for an equitable distribution of such investment property. Moreover, the proof in the record as to the appreciation of much of the investment property is inadequate.

We reach a different conclusion, however, as to the marital home. Notwithstanding the unusual economic relationship of the parties, they resided together in that home during the entire...