Nolan v. Nolan

• Decision Date: 04 May 1995
• Citation: 626 N.Y.S.2d 568,215 A.D.2d 795
• Parties: Karen L. NOLAN, Appellant, v. John F. NOLAN Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 568

626 N.Y.S.2d 568

215 A.D.2d 795

Karen L. NOLAN, Appellant, v. John F. NOLAN Jr., Respondent.

Supreme Court, Appellate Division Third Department.

May 4, 1995.

Law Offices of Karen M. Gazda (Karen M. Gazda, of counsel), Clifton Park, for appellant.

Edward J. Grogan, Clifton Park, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Viscardi, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered December 17, 1993 in Saratoga County, upon a decision of the court.

In an open-court stipulation, the parties to this matrimonial action chartered their own procedural course by agreeing to mutual divorces and limiting the trial of the equitable distribution issues by providing that they each could testify as to the identity and value of the marital assets. The parties then presented their proof in support of their respective causes of action for divorce. Thereafter, a hearing on the issues of equitable distribution and support was held in accordance with the stipulation. Supreme Court accepted the proposed findings and conclusions of law submitted by defendant and issued a judgment which granted a divorce only to defendant and allegedly resolved several equitable distribution issues adversely to plaintiff, thereby prompting this appeal.

The parties' principal asset was their marital residence, which had an agreed upon value of $79,000 less a mortgage of approximately $26,000. Supreme Court distributed this asset equally, allowing plaintiff 60 days to indicate whether she wanted to purchase defendant's interest and, if she did not elect to do so, directing that the property be sold. Plaintiff argues that Supreme Court erred in making this distribution because it failed to consider her need as the custodial parent to occupy the residence.

Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds (see, Leabo v. Leabo, 203 A.D.2d 254, 610 N.Y.S.2d 274; Milewski v. Milewski, 197 A.D.2d 562, 602 N.Y.S.2d 660; Kalisch v. Kalisch, 184 A.D.2d 751, 754, 585 N.Y.S.2d 476). Inasmuch as the record is silent on these issues, we find a failure to comply with Domestic Relations Law § 236(B)(5)(g); we therefore modify the judgment by vacating the 10th decretal paragraph and remit this issue to Supreme Court for further proceedings (see, DeSantis v. DeSantis, 205 A.D.2d 928, 613 N.Y.S.2d 737; Murphy v. Murphy, 193 A.D.2d 1068, 599 N.Y.S.2d 198; see also, 11C Zett-Kaufman-Kraut, N.Y.Civ.Prac. § 61.05[4][c][i].

Because the record is sufficiently developed on the other issues raised by plaintiff, we shall proceed to resolve them (see, Chasin v. Chasin, 182 A.D.2d 862, 582 N.Y.S.2d 512).

Although the parties agreed that defendant's Master's degree was a marital asset, Supreme Court did not distribute any portion of it to plaintiff. This was not an abuse of discretion given (1) the proof showing that defendant's employer paid his tuition and that plaintiff did not make any financial contributions to the attainment of the degree, and (2) the fact the degree can be deemed to have merged into defendant's career since its effect on his earning capacity was reflected in his salary (see, Maher v. Maher, 196 A.D.2d 530, 601 N.Y.S.2d 165; McSparron v. McSparron, 190 A.D.2d 74, 80-81, 597 N.Y.S.2d 743; compare, Phelps v. Phelps, 199 A.D.2d 608, 604 N.Y.S.2d 339).

The next issue we consider is whether Supreme Court's direction that defendant pay 63% of the actual child care expenses up to a maximum of $45 per week is correct. The record establishes that plaintiff is incurring child care expenses in the sum of $55 per week. It is true that a parent's pro rata share of child care expenses is predicated upon the custodial parent's "reasonable child care expenses" as opposed to his or her actual expenses (Koczaja v. Koczaja, 195 A.D.2d 693, 695, 599 N.Y.S.2d 739, lv. denied 83 N.Y.2d 756, 613 N.Y.S.2d 128, 635 N.E.2d 297; see, Domestic Relations Law § 240[1-b][c][4]. Here, however, based upon the evidence in the record, we are of the view that plaintiff's actual child care expenses are reasonable and, therefore, the fourth decretal paragraph of Supreme Court's judgment should be modified to provide that defendant pay plaintiff $35 per week ($55 X 63%) for child care expenses.

Plaintiff further contends that Supreme Court erred in not fixing a valuation date for the mortgage on the marital residence. In our opinion Supreme Court did not overlook this issue since, by giving each party a credit for payments made by the party following the commencement of the action toward the reduction of the principal on the mortgage, Supreme Court impliedly adhered to the general rule that the date of valuation is fixed as of the commencement of the action (see, Bohnsack v. Bohnsack, 185 A.D.2d 533, 586 N.Y.S.2d 369; Lord v. Lord, 124 A.D.2d 930, 508 N.Y.S.2d 676).

Lastly, in view of the fact that plaintiff previously presented proof in support of her cause of action for divorce which Supreme Court indicated was sufficient, and on defendant's consent expressed at oral argument, plaintiff should be awarded a divorce from defendant upon submission to Supreme Court of appropriate findings of fact and...