Robinson v. Robinson

• Decision Date: 25 November 2015
• Citation: 133 A.D.3d 1185,21 N.Y.S.3d 392
• Parties: Gregg R. ROBINSON, Appellant–Respondent, v. Carolyn Erff ROBINSON, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1185

21 N.Y.S.3d 392

Gregg R. ROBINSON, Appellant–Respondent,

v.Carolyn Erff ROBINSON, Respondent–Appellant.

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

Nov. 25, 2015.

Orseck Law Offices, PLLC, Liberty (Gerald Orseck of counsel), for appellant-respondent.

Harlem & Jervis, Oneonta (Richard A. Harlem of counsel), for respondent-appellant.

BEFORE: PETERS, P.J., LAHTINEN, GARRY and CLARK, JJ.

PETERS, P.J.

Cross appeal from a judgment of the Supreme

Court (Lambert, J.), entered September 4, 2014 in Delaware County, ordering, among other things, equitable distribution of the parties' marital property, upon decisions of the court.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 2002. The husband commenced this action in 2010 and, after the parties stipulated to the grounds for divorce, a nonjury trial was conducted on the issues of equitable distribution and maintenance. Supreme Court granted the divorce, distributed the marital property and directed the husband to pay the wife $500 a month in spousal maintenance for 26 months and $5,000 in counsel fees. This cross appeal ensued.

Both parties challenge the award of maintenance; the wife argues that the amount and/or duration of the award is insufficient, while the husband contends that any award of maintenance was error. "The amount and duration of a maintenance 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" (Cornish v. Eraca–Cornish, 107 A.D.3d 1322, 1324, 968 N.Y.S.2d 659 [2013] [internal quotation marks, brackets and citations omitted]; see Domestic Relations Law § 236[B][6] ; Orioli v. Orioli, 129 A.D.3d 1154, 1155, 10 N.Y.S.3d 713 [2015] ). The court need not analyze and apply each and every factor set forth in the statute, but "must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance" (Curley v. Curley, 125 A.D.3d 1227, 1228, 4 N.Y.S.3d 676 [2015] ; see Vantine v. Vantine, 125 A.D.3d 1259, 1261, 4 N.Y.S.3d 375 [2015] ; McAteer v. McAteer, 294 A.D.2d 783, 784, 742 N.Y.S.2d 718 [2002] ).

In fashioning its maintenance award, Supreme Court noted the length of the marriage, that the parties have no children in common and were both in relatively good health. The wife has a Bachelor's degree, has held various clerical and administrative jobs during the marriage and was earning roughly $30,000 at the time of the trial. The husband possesses a high school education and has worked as a self-employed contractor since 1994. Although the husband claimed an annual adjusted gross income of $20,399 for the preceding tax year, Supreme Court found him incredible in the reporting of his income and assets, noting that he had actively concealed financial information and assets and claimed expenses that exceeded his purported income. Deferring to the court's evaluation of the husband's credibility on the issue of his income and assets (see Johnson v. Chapin, 49 A.D.3d 348, 360–361, 854 N.Y.S.2d 18 [2008], affd. 12 N.Y.3d 461, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009] ), and considering the predivorce standard of living and the relatively short-term nature of the award, we cannot conclude that the award of maintenance was an abuse of discretion (see Quarty v. Quarty, 96 A.D.3d 1274, 1277, 948 N.Y.S.2d 130 [2012] ; Burtchaell v. Burtchaell, 42 A.D.3d 783, 784–785, 840 N.Y.S.2d 449 [2007] ; Walters v. Walters, 252 A.D.2d 775, 775, 676 N.Y.S.2d 268 [1998] ).

The parties also dispute several aspects of Supreme Court's equitable distribution award, which "will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors" (Vertucci v. Vertucci, 103 A.D.3d 999, 1001, 962 N.Y.S.2d 382 [2013] [internal quotation marks and citations omitted]; see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 420, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009] ; Mula v. Mula, 131 A.D.3d 1296, 1298, 16 N.Y.S.3d 868 [2015] ). We first address the marital residence which, having been purchased by the husband prior to the marriage, was the husband's separate property (see Domestic Relations Law § 236[B][1][d][1] ; Ceravolo v. DeSantis, 125 A.D.3d 113, 115–116, 1 N.Y.S.3d 468 [2015] ). However, "any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property" (Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009] ; see Domestic Relations Law § 236[B] [1][d][3] ; Macaluso v. Macaluso, 124 A.D.3d 959, 960, 1 N.Y.S.3d 464 [2015] ; Biagiotti v. Biagiotti, 97 A.D.3d 941, 943, 948 N.Y.S.2d 445 [2012] ). The wife, as the nontitled spouse, bore the burden of establishing that any increase in the value of the separate property was due at least in part to her contributions or efforts (see Macaluso v. Macaluso, 124 A.D.3d at 962, 1 N.Y.S.3d 464 ; Albanese v. Albanese, 69 A.D.3d 1005, 1006, 892 N.Y.S.2d 631 [2010] ; Bonanno v. Bonanno, 57 A.D.3d 1260, 1261, 870 N.Y.S.2d 551 [2008] ).

While there is no dispute that substantial improvements had been made to the marital home, the parties presented sharply conflicting testimony as to both when those improvements were made and the wife's overall contributions to the home and the marriage. The husband testified that, after he acquired his former spouse's interest in the property in 1999, he spent considerable time and effort renovating the marital residence by, among other things, constructing an addition on the house, building a garage, landscaping and installing a new roof, siding, windows, a heating system and a deck. According to the husband, the improvements to the marital home were "pretty much finished" at the time he and the wife married in August 2002. He noted that some additional work was performed after the wife moved into the marital residence, but claimed that the wife did not assist in making any of the improvements and that he paid for them with profits earned through his construction business and other personal endeavors. The wife, on the other hand, claimed that the vast majority of the improvements testified to by the husband were made by the parties during the marriage. She explained that she and the husband spent numerous weekends renovating the marital residence and, while acknowledging that she did not have the skills to complete most of the construction work done to the home, testified that she would help purchase and obtain the required materials, request estimates, compare prices of materials and otherwise assist the husband with whatever he needed. The wife testified further that, in addition to working full time, she was the primary caretaker of the marital residence and contributed to the household by doing all of the cooking, cleaning and laundering. According appropriate deference to Supreme Court's credibility assessments and its substantial discretion in fashioning an award (see Vantine v. Vantine, 125 A.D.3d at 1261, 4 N.Y.S.3d 375 ; Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] ), we find no basis upon which to disturb its determination that the appreciation in the value of the marital residence was attributable to the joint efforts of the parties and that the wife was entitled to 50% of that increase in value (see Lowe v. Lowe, 123 A.D.3d 1207, 1209, 998 N.Y.S.2d 252 [2014] ; Scher v. Scher, 91 A.D.3d 842, 845, 938 N.Y.S.2d 317 [2012] ; Miller v. Miller, 4 A.D.3d 718, 719, 772 N.Y.S.2d 413 [2004] ).

We do find merit, however, in the wife's contention that Supreme Court erred in determining the amount of the marital home's appreciation. The parties submitted competing appraisals valuing the property both on the date of the marriage and the date of commencement of this action. In determining the appreciation, Supreme Court averaged the values set forth in the parties' respective date of marriage appraisals, averaged the values set forth in their date of commencement appraisals, and then subtracted the former figure from the latter. While this Court has declined to impose an absolute proscription against the procedure of averaging competing appraisals in valuing a marital asset (see Hoyt v. Hoyt, 166 A.D.2d 800, 802, 563 N.Y.S.2d 161 [1990] ), blindly employing such a technique without articulating a reason for doing so cannot be condoned (see Domestic Relations Law § 236[B][5][g] ; Antinora v. Antinora, 125 A.D.3d 1336, 1339, 3 N.Y.S.3d 500 [2015] ; Gainer v. Gainer, 111 A.D.2d 308, 309, 489 N.Y.S.2d 297 [1985] ; cf. Latham Holding Co. v. State of New York, 16 N.Y.2d 41, 261 N.Y.S.2d 880, 209 N.E.2d 542 [1965] ). Mechanically averaging values set forth in competing appraisals may well result in a speculative valuation that is not founded in economic reality (see Morales v. Morales, 230 A.D.2d 895, 896, 646 N.Y.S.2d 884 [1996], lv. denied 90 N.Y.2d 804, 661 N.Y.S.2d 179, 683 N.E.2d 1053 [1997] ; Iwahara v. Iwahara, 226 A.D.2d 346, 348, 640 N.Y.S.2d 217 [1996] ; Martin v. Martin, 200 A.D.2d 304, 308, 614 N.Y.S.2d 775 [1994] ; Gainer v. Gainer, 111 A.D.2d at 309, 489 N.Y.S.2d 297 ).

Here, Supreme Court failed to set forth any reason for rejecting the valuations advanced by the parties' appraisers. Indeed, the court's decision to average the appraisals was particularly problematic given the circumstances present here. The wife's date of marriage appraisal valued the marital home at $36,000 based on her representations that the substantial improvements at issue were performed during the marriage, while the husband's appraisal valued it at $140,000 based upon his representations that such improvements were performed prior to the marriage.¹ Thus, the determination as to the value of the marital home on the date of the marriage necessarily hinged upon the resolution of factual disputes and issues of credibility, which could not be accomplished by simply averaging ...