Nolan v. Nolan

• Decision Date: 07 March 1985
• Citation: 107 A.D.2d 190,486 N.Y.S.2d 415
• Parties: Priscilla NOLAN, Appellant, v. James NOLAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 415

486 N.Y.S.2d 415

107 A.D.2d 190

Priscilla NOLAN, Appellant, v. James NOLAN, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 7, 1985.

Jeanella M. Baldwin, Syracuse (Robert W. Kahn and Florence M. Richardson, Albany, of counsel), for appellant.

Anthony J. Di Caprio, Jr., Syracuse, for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

OPINION

YESAWICH, Justice.

Because of claimed cruel and inhuman treatment by defendant, plaintiff commenced this action for divorce in October of 1981. Married in 1965, the parties have three children. Eastern Chemicals, Inc., a closely held family corporation, employed defendant until 1969 when it merged with Ashland Oil and Refining Company (Ashland). Following the merger, defendant was appointed Ashland's district manager in Syracuse and his shares of Eastern Chemicals stock, which he held before the marriage, were converted into shares of Ashland. In 1979, defendant left Ashland to manage his own assets, which continue to be his primary source of income.

Plaintiff's fault-based divorce action, commenced in 1981, resulted in a verdict in her favor. A nonjury trial was then held to determine issues associated with equitable distribution, maintenance, child support and custody. In a comprehensive and well-considered decision, Trial Term found the bulk of the wealth to be defendant's separate assets which had appreciated over the duration of the marriage to a value of $1,793,575.30, valued plaintiff's separate property at $80,292 and equally divided the parties' marital property, found to be worth $102,268, by directing defendant to pay a distributive award of $51,134 to plaintiff in five annual installments of $10,226.80 each. Plaintiff was also awarded maintenance of $100 per week for three years, retroactive to the commencement of the divorce action but offset by the amount of defendant's payments made during the pendency of the action. Trial Term further granted the parties joint custody of the children, who were to reside with plaintiff and required defendant to pay $75 per week in child support for each of the three children until they reached age 21. Plaintiff challenges the equitable distribution, maintenance, child support and custody determinations.

At the outset, plaintiff suggests it was error for Trial Term to find her guilty of marital fault and to consider that misconduct in arriving at its various awards. Because plaintiff availed herself of her Fifth Amendment right against self-incrimination when questioned regarding an alleged adulterous relationship, we believe that Trial Term properly inferred marital misconduct on her part (see Marine Midland Bank v. Russo Produce Co., 50 N.Y.2d 31, 42, 427 N.Y.S.2d 961, 405 N.E.2d 205). Given the mores of the times, we deem her misbehavior insufficiently egregious to justify her divestiture of any portion of the property interests she earned over the course of the marriage; her marital fault was simply not so remarkable that it needed to be reflected upon in establishing her distributive award (see Stevens v. Stevens, 107 A.D.2d 987, 484 N.Y.S.2d 708; Hopper v. Hopper, 103 A.D.2d 911, 912, 478 N.Y.S.2d 147). This error, however, is of harmless dimension since Trial Term carefully analyzed all of the relevant statutory factors and the award ultimately fashioned was, on the record as a whole, fair and appropriate (see Alford v. Alford, 104 A.D.2d 390, 391, 478 N.Y.S.2d 717).

As this court has recently decided, however, marital fault is a proper consideration in awarding maintenance (Stevens v. Stevens, supra; see Domestic Relations Law § 236[B][6][a][10] ). In this regard, we note that Trial Term evaluated each relevant factor identified by Domestic Relations Law § 236(B)(6)(a) and awarded plaintiff a reasonable amount of maintenance sufficient to assist her until she becomes self-supporting. No error is discernible in the resolution of this issue.

In determining what constituted defendant's separate property, Trial Term treated the appreciation in value of defendant's assets which he held prior to or acquired during the marriage as separate property. Plaintiff's attack on the soundness of this determination is based upon the proposition that defendant's income generated from the exclusive management of his assets constitutes marital property. In general, appreciation in value of separate property which "cannot fairly be considered as the product of the marital partnership" is excluded from equitable distribution (Brennan v. Brennan, 103 A.D.2d 48, 53, 479 N.Y.S.2d 877; see Domestic Relations Law § 236[B][1][d][3] ). In this case, however, defendant left a salaried position with Ashland in 1979 to devote his energies to full-time management of his securities. The record indicates that the appreciation in value of defendant's separate property was not entirely due to random market fluctuations (see Jolis v. Jolis, 98 A.D.2d 692, 693, 470 N.Y.S.2d 584), but as a result of active management of his holdings (see Conner v. Conner, 97 A.D.2d 88, 99, n. 4, 468 N.Y.S.2d 482; Roffman v. Roffman, 124 Misc.2d 636, 476 N.Y.S.2d 713). Plaintiff's contribution as a homemaker and mother to the production of marital income while defendant managed his assets was no less significant than when defendant worked for Ashland. In both cases, the income, in the form of wages or appreciation, is attributable in some degree to the marital partnership. Furthermore, had defendant remained in Ashland's employ after 1979 and paid an investor to...