Noble v. Noble

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETERS
• Citation: Noble v. Noble, 911 N.Y.S.2d 252, 78 A.D.3d 1386 (N.Y. App. Div. 2010)
• Decision Date: 18 November 2010
• Parties: Carol NOBLE, Respondent, v. Steve NOBLE, Appellant.

911 N.Y.S.2d 252

78 A.D.3d 1386

Carol NOBLE, Respondent,

v.Steve NOBLE, Appellant.

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

Nov. 18, 2010.

David Brickman, Albany, for appellant.

Boies, Schiller & Flexner, L.L.P., Albany (Adam R. Shaw of counsel), for respondent.

Before: PETERS, J.P., SPAIN, MALONE JR. and EGAN JR., JJ.

PETERS, J.P.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered September 17, 2009 in Albany 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 two children (born in 1988 and 1991). In July 2008, plaintiff commenced this action for divorce. The parties stipulated to the grounds for divorce and the value of certain items of marital property, but proceeded to a nonjury trial on the issues of equitable distribution, maintenance, child support and counsel fees. Supreme Court, in adopting specific proposed findings of fact and conclusions of law submitted by the parties, ordered an equal division of the marital equity in the marital residence and the value of the real estate owned by defendant's businesses, distributed thedebt associated with those businesses to defendant and classified the remaining assets as separate property. The court also directed defendant to pay both child support and nondurational maintenance and granted plaintiff's application for counsel fees. Defendant now appeals.

Initially, "it is well established that the trial court must hear sufficient evidence in order to intelligently make the necessary findings and must state the reasons therefore in accordance with Domestic Relations Law § 236(B)" ( Bean v. Bean, 53 A.D.3d 718, 721, 860 N.Y.S.2d 683 [2008] ). Here, following five days of testimony from various witnesses and the receipt of numerous documents into evidence, the parties submitted nearly 100 pages of proposed findings of fact and conclusions of law, each of which cited to the record for support and was marked "found" or "not found" by Supreme Court. In rendering its decision, the court did not abdicate its responsibilities by adopting the parties' findings and conclusions wholesale, but rather edited them by deleting, adding or modifying language and inserting additional reasoning and awards ( compare Altieri v. Altieri, 35 A.D.3d 1093, 1096, 827 N.Y.S.2d 735 [2006], with Capasso v. Capasso, 119 A.D.2d 268, 275-276, 506 N.Y.S.2d 686 [1986] ). Although the statutory factors are not specifically cited to, the court's factual findings reveal that it did consider the relevant factors and adequately set forth the reasons for its decision ( see Bean v. Bean, 53 A.D.3d at 721-722, 860 N.Y.S.2d 683; Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686, 736 N.Y.S.2d 453 [2002]; Moschetti v. Moschetti, 277 A.D.2d 838, 838-839, 716 N.Y.S.2d 802 [2000]; Fraley v. Fraley, 235 A.D.2d 997, 997-998, 652 N.Y.S.2d 889 [1997] ). Under these circumstances, we find that Supreme Court's decision sufficiently complies with the requirements of Domestic Relations Law § 236(B).

Relatedly, while Supreme Court did not violate the statute in this case, the practice of editing and then adopting proposedfindings of fact and conclusions of law is not recommended. Particularly when utilized in the context of an equitable distribution determination, the practice has the potential to create confusion and inconsistencies within the overall decision-as it did here with respect to the distribution of plaintiff's personal account with RBC Wealth Management. Specifically, the court's conclusions of law state that plaintiff's RBC account is separate property associated with "significant debt[ ]" and not subject to equitable distribution while, at the same time, also state that the RBC account is subject to 50% distribution. Inasmuch as it is unclear as to how the court intended to distribute that asset, we remit for clarification ( see Smith v. Smith, 1 A.D.3d 870, 871, 769 N.Y.S.2d 306 [2003] ).

Next, Supreme Court's finding that defendant wastefully dissipatedmarital assets, a factor which it was entitled to consider in equitably distributing the marital property ( see Domestic Relations Law § 236[B][5][d][12] ), is amply supported by evidence that defendant engaged in excessive spending, made various unsecured loans without plaintiff's knowledge and invested in two businesses that resulted in no economic benefit to the parties. Defendant had been employed with NBT Bank earning an annual income in excess of $80,000, but he resigned in 2007 after being faced with dismissal for simultaneously operating businesses that acted in direct competition with his employer. Defendant then liquidated his 401(k) account, invested the approximately $110,000 into his two businesses and borrowed over $700,000 to cover start-up and other business costs. While obligated on these debts and with the businesses operating at a loss, he made unsecured loans to friends and business associates in amounts totaling over $165,000, none of which has been repaid. Moreover, at a time when it was clear that his businesses were suffering and notwithstanding his court-imposed restrictions on spending, defendant spent an inordinate amount of money. He engaged in extensive travel-funded by proceeds he received through an insurance settlement involving one of his companies-in the months preceding the trial, spent nearly $10,000 in country club dues in 2009 and thousands of dollars on restaurants, additional golf expenses, hotels, furnishings for his apartment and Internet Web sites, all while failing to pay the mortgage on the marital home, court-ordered child support and maintenance and notwithstanding his court-imposed restriction on spending. Thus, according deference to Supreme Court's credibility determinations and assessment of the evidence ( see Carlson-Subik v. Subik, 257 A.D.2d 859, 862, 684 N.Y.S.2d 65 [1999] ), we cannot say that the finding of wasteful dissipation was improper or that the court abused its considerable discretion in apportioning all debt associated with defendant's businesses to defendant and declining to credit him with an equitable share of the marital home furnishings as a consequence ( see Altieri v. Altieri, 35 A.D.3d at 1095, 827 N.Y.S.2d 735; Brzuszkiewicz v. Brzuszkiewicz, 28 A.D.3d 860, 861, 813 N.Y.S.2d 793 [2006]; Baker v. Baker, 199 A.D.2d 967, 968, 608 N.Y.S.2d 23 [1993] ).

Nor are we persuaded that Supreme Court erred in refusing to impute as income to plaintiff the monthly sums of money that she received from her mother during the two years preceding the trial. These funds were given to plaintiff to assist with her day-to-day needs and payment of bills during the time when defendant left his employment at NBT and, subsequently, the marital home, as well as during the pendency of this action when defendant failed to provide support for plaintiff and thechildren ( see Isaacs v. Isaacs, 246 A.D.2d 428, 428, 667 N.Y.S.2d 740 [1998] ). Moreover, plaintiff testified that there is no agreement that her mother continue to give her such sums of money ( see Huebscher v. Huebscher, 206 A.D.2d 295, 295, 614 N.Y.S.2d 524 [1994] ). Considering the timing and discretionary nature of the gift-giving, the decision not to impute these funds as income was not an abuse of discretion.

Similarly unavailing is defendant's assertion that Supreme Court improperly gave plaintiff a separate property credit for funds used to make the down payment on the marital home. The trial evidence established that plaintiff was given $200,000 from her mother, in the form of two $100,000 checks made out to her only, as a gift for use as a down payment on the marital home. Plaintiff then deposited these funds into the parties' joint account and they were subsequently used for that purpose. Defendant does not dispute that the money was a gift to plaintiff that constituted her separate property when given ( see Domestic Relations Law § 236[B][1][d][1] ), but claims that the funds were converted to marital property when they were deposited into the parties' joint checking account. Although the transfer of separate property into a joint account raises a presumption that the funds are marital property, "this presumption may be rebutted by proof that such deposits were made 'as a matter of convenience, without the intention of creating a beneficial interest' " ( Fehring v. Fehring, 58 A.D.3d 1061, 1062, 874 N.Y.S.2d 266 [2009], quoting Chamberlain v. Chamberlain, 24 A.D.3d 589, 593, 808 N.Y.S.2d 352 [2005]; see Dugue v. Dugue, 172 A.D.2d 974, 976, 568 N.Y.S.2d 244 [1991] ). To that end, plaintiff testified that she did not have a traditional individual checking account, and ...