Murray v. Murray

• Decision Date: 13 December 2012
• Citation: Murray v. Murray, 101 A.D.3d 1320, 956 N.Y.S.2d 252, 2012 N.Y. Slip Op. 8612 (N.Y. App. Div. 2012)
• Parties: Joseph MURRAY, Appellant, v. Suzanne MURRAY, Respondent.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1320

956 N.Y.S.2d 252

2012 N.Y. Slip Op. 08612

Joseph MURRAY, Appellant,

v.Suzanne MURRAY, Respondent.

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

Dec. 13, 2012.

Levinson, Reineke & Ornstein, PC, Central Valley (Justin E. Kimple of counsel), for appellant.

Michael D. Altman, South Fallsburg, for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Sackett, J.), entered June 13, 2011 in Sullivan County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

The parties were married in 1986 and have four children (born in 1987, 1989, 1992 and 1994). Approximately 15 months before the marriage, plaintiff (hereinafter the husband) purchased a residence in Queens County. Following their marriage and some renovations to this property, the parties lived there together for several years. In 1991, the husband conveyed this property to himself and defendant (hereinafter the wife) jointly. The parties thereafter refinanced the Queens County property and used the proceeds to purchase a second residence in the Town of Callicoon, Sullivan County (hereinafter the marital residence). They resided there together and rented out the Queens County property, until 2003, when the husband left the marital residence. In 2004, a Support Magistrate ordered the husband to pay child support and directed that he pay 75% of any unreimbursed medical expenses.

The husband commenced this divorce action in 2005. Following a lengthy trial, Supreme Court, among other things, granted exclusive possession of the marital residence to the wife until the emancipation of the youngest child, ordered the equitable distribution of a motorcycle and the rental income from the Queens County property, and directed the husband to pay weekly child support and—beginning upon the youngest child's emancipation—monthly maintenance to the wife for 10 years or until she remarries. The court further continued the prior order directing the husband to pay 75% of the unreimbursed medical expenses, and also required him to pay the wife a lump sum representing one half of certain wasted marital assets, to maintain life insurance policies and to provide college funds for the unemancipated children. The husband appeals.

Initially, we find that denying the husband a credit for the premarital value of the Queens County property was within Supreme Court's discretion. The transfer of that property into joint ownership created a presumption that it was marital property, placing the burden upon the husband to rebut this presumption with clear and convincing proof that the transfer was solely a matter of convenience ( see Campfield v. Campfield, 95 A.D.3d 1429, 1430, 944 N.Y.S.2d 339 [2012],lv. dismissed20 N.Y.3d 914, 2012 WL 5907166 [Nov. 27, 2012];Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 [2007] ). Here, the husband's testimony regarding the Queens County property—characterized by Supreme Court as evasive and questionable—failed to rebut the presumption ( see Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 [2011] ). The entire Queens County property was thus part of the parties' marital property and subject to equitable distribution and the court's “substantial discretion in fashioning an award” ( Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012];see Quinn v. Quinn, 61 A.D.3d 1067, 1069, 876 N.Y.S.2d 720 [2009];Domestic Relations Law § 236[B][5][c], [d] ). While a credit is often given for the value of the former separate property ( see Lurie v. Lurie, 94 A.D.3d at 1377–1378, 943 N.Y.S.2d 261;Milnarik v. Milnarik, 23 A.D.3d 960, 962, 805 N.Y.S.2d 151 [2005];Myers v. Myers, 255 A.D.2d 711, 716, 680 N.Y.S.2d 690 [1998] ), such credit is not strictly mandated since the property is no longer separate, but is part of the total marital property. “There is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds” ( Fields v. Fields, 15 N.Y.3d 158, 167, 905 N.Y.S.2d 783, 931 N.E.2d 1039 [2010] ). Upon review of the record and the entirety of the equitable distribution award, we are unpersuaded that Supreme Court abused its discretion relative to the Queens County property.

For similar reasons, Supreme Court did not err in ordering the liquidation and equal division of the parties' Verizon stock. The husband testified that he owned at least some of this stock before the marriage, but offered no specific evidence supporting this claim. Most significantly, all of the stock was placed in joint ownership during the marriage. The husband was thus required to rebut the resulting presumption that this asset was marital property by clear and convincing evidence, and his mere assertion that he objected to this transfer did not meet that significantburden ( see Burtchaell v. Burtchaell, 42 A.D.3d at 787, 840 N.Y.S.2d 449;Chiotti v. Chiotti, 12 A.D.3d 995, 996–997, 785 N.Y.S.2d 157 [2004] ). As to the husband's claim that Supreme Court should have considered the tax consequences of this order, the record reveals no request for such consideration nor evidence upon which such an analysis could have been based ( see Cameron v. Cameron, 51 A.D.3d 1165, 1166, 857 N.Y.S.2d 793 [2008],lv. denied11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008];Vicinanzo v. Vicinanzo, 193 A.D.2d 962, 968, 598 N.Y.S.2d 362 [1993] ).

Next, the husband challenges the maintenance award. The amount and duration of this award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties' predivorce standard of living are considered ( seeDomestic Relations Law § 236[B][6][a]; Biagiotti v. Biagiotti, 97 A.D.3d 941, 942, 948 N.Y.S.2d 445 [2012];Roberto v. Roberto, 90 A.D.3d 1373, 1376, 936 N.Y.S.2d 337 [2011] ). Here, in reviewing the pertinent factors, Supreme Court placed particular emphasis on the persistent significant disparity in the parties' incomes, the wife's limited prospects for increased earnings, and the lost income, earning capacity and retirement savings that she incurred by remaining out of the paid work force to raise the parties' children for approximately 17 years during the marriage. In this regard, the court credited the wife's testimony that the husband demanded that she stay at home with the children during this time. Thus, given that “the marriage is of long duration, the recipient spouse has been out of the work force for a number of years [and] has sacrificed her ... own career development or has made substantial noneconomic contributions to the household or to the career of the payor” ( Ndulo v. Ndulo, 66 A.D.3d 1263, 1265, 888 N.Y.S.2d 236 [2009] ), we find Supreme Court's decision to render an award of maintenance well supported by the record ( see O'Connor v. O'Connor, 91 A.D.3d 1107, 1108–1109, 937 N.Y.S.2d 355 [2012];Brzuszkiewicz v. Brzuszkiewicz, 28 A.D.3d 860, 862, 813 N.Y.S.2d 793 [2006] ).

Nonetheless, the structure of the award is inappropriate, as it is wholly deferred until the child support payments cease. Awards of maintenance and child support are based on interrelated factors, but do not serve the same purposes; maintenance is intended for the support of the recipient spouse, while child support is paid for the “care, maintenance and education of any unemancipated child” (Domestic Relations Law § 240[1–b][b] [2]; see Roberto v. Roberto, 90 A.D.3d at 1376, 936 N.Y.S.2d 337). Further, because the interrelated factors upon which awards of support and maintenance are based may change in unanticipated ways, it is inappropriate to provide for future increases or decreases in maintenance “[e]xcept when a judgment provides for an imminentand measurable change” ( Majauskas v. Majauskas, 61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). Thus, Supreme Court erred in delaying the commencement of the maintenance obligation until the child support payments terminate, and remittal is required for reconsideration of the appropriate amount and duration of the award, and for recalculation of the child support award if required by any resulting adjustments in the parties' income for this purpose ( see O'Brien v. O'Brien, 88 A.D.3d 775, 777–778, 931 N.Y.S.2d 78 [2011];Landgraf v. Neuhaus, 77 A.D.3d 590, 590, 910 N.Y.S.2d 431 [2010];Dawson v. Dawson, 152 A.D.2d 717, 720–721, 544 N.Y.S.2d 172 [1989] ).

Additional issues are posed relative to child support. During the course of the trial, which began in 2007 and ended in 2010, the husband moved for pendente lite reduction of the 2004 child support order based upon the emancipation of the parties' older two children in February 2008 and September 2010, respectively.¹ Supreme Court denied pendente lite relief, stating that appropriate modifications would be made at the conclusion of the action. The findings of fact and conclusions of law issued following the trial continued the 2004 child support order in full force and effect, but recognized the emancipations by reducing the applicable percentage to reflect support for three children as of February 2008, and for two children as of September 2010. As the husband had paid support for the four children throughout the pendency of the action, the court held that he was entitled to credit for overpayments in 2008, 2009 and 2010. The husband now contends that Supreme Court erred in basing the child support on the parties' incomes in 2004, rather than as revealed in the most recent tax returns. We disagree. The husband bore the burden of establishing a substantial change in circumstances requiring downward modification of the prior order ( seeDomestic Relations Law § 236[B][9][b]; Cheney v. Cheney, 86 A.D.3d 833, 835, 927 N.Y.S.2d 696 [2011];Cynoske v. Cynoske, 8 A.D.3d 720, 722, 778 N.Y.S.2d 105 [2004] ), and...