Murphy v. Murphy

• Decision Date: 17 February 2004
• Docket Number: 2002-08475.
• Citation: 772 N.Y.S.2d 355,2004 NY Slip Op 01010,4 A.D.3d 460
• Parties: ROBYN MURPHY, Respondent, v. KENNETH MURPHY, Appellant.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 460

772 N.Y.S.2d 355

2004 NY Slip Op 01010

ROBYN MURPHY, Respondent, v. KENNETH MURPHY, Appellant.

2002-08475.

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

February 17, 2004.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Skelos, J.), entered August 16, 2002, which, after a nonjury trial, inter alia, equitably distributed the parties' real property, including real property in Gilboa, New York, directed him to pay maintenance in the sum of $100 per week for a period of five years, and directed him to pay child support in the sum of $302.60 per week.

Ordered that the judgment is modified, on the law and the facts, by (1) deleting the fourteenth decretal paragraph thereof and substituting therefor a provision declaring that the real property in Gilboa, New York, is entirely the defendant's separate property, and (2) deleting from the fifteenth decretal paragraph thereof the sum of $87,676.67 and substituting therefor the sum of $105,369.44; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The marital residence was purchased after the marriage and was therefore subject to equitable distribution (see Domestic Relations Law § 236 [B] [1] [c]). Although the defendant claimed that the $23,000 down payment was paid with his separate funds, he offered no evidentiary support for this assertion beyond his own testimony (see Saasto v Saasto, 211 AD2d 708, 709 [1995]; Sarafian v Sarafian, 140 AD2d 801, 804 [1988]). Since it was undisputed that the defendant contributed $207,000 of his separate property toward the creation of this marital asset, the Supreme Court correctly determined that he was only entitled to a credit in that amount (see Tozer v Tozer, 286 AD2d 384, 386 [2001]; Pauk v Pauk, 232 AD2d 386, 390 [1996]; Maczek v Maczek, 248 AD2d 835, 837 [1998]). The Supreme Court's award of 45% of the value of the marital portion of the marital residence to the plaintiff was a provident exercise of discretion (see Butler v Butler, 171 AD2d 89 [1991]).

However, the real property located in Gilboa, New York, and the capital improvements made thereto were the defendant's separate property, since the property had been purchased before the parties' marriage and the capital improvements were made with the defendant's separate funds (see Domestic Relations Law § 236 [B] [1] [d] [1]). Therefore, the fifteenth decretal paragraph of the judgment is modified accordingly.

Taking into consideration all of the relevant factors governing the award of maintenance, including the reasonable needs of the plaintiff and the parties' predivorce standard of living (see Domestic Relations Law § 236 [B] [6]), the weekly...