Seidman v. Seidman

• Decision Date: 18 April 1996
• Citation: Seidman v. Seidman, 641 N.Y.S.2d 431, 226 A.D.2d 1011 (N.Y. App. Div. 1996)
• Parties: Joan P. SEIDMAN, Respondent, v. Abram A. SEIDMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 431

641 N.Y.S.2d 431

226 A.D.2d 1011

Joan P. SEIDMAN, Respondent, v. Abram A. SEIDMAN, Appellant.

Supreme Court, Appellate Division Third Department.

April 18, 1996.

Mark D. Stern, Goshen, for appellant.

Sheila Callahan O'Donnell, Cornwall, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

CREW, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Barone, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered October 20, 1994 in Orange County, upon a decision of the court.

The parties were married in 1976 and have two children, Sarah (born in 1980) and Mark (born in 1982). The parties separated in August 1990, and in March 1991 plaintiff commenced this action for divorce alleging cruel and inhuman treatment by defendant and seeking, inter alia, equitable distribution of the parties' marital property. Defendant answered and counterclaimed for similar relief. Following a trial in June 1994, Supreme Court granted the parties a mutual divorce, distributed the marital and separate property at issue and awarded plaintiff sole custody of the parties' minor children, with visitation to defendant. This appeal by defendant followed.

Defendant initially contends that Supreme Court erred in classifying certain assets, including a certain 7.3-acre parcel of land, as marital property. Domestic Relations Law § 236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before * * * the commencement of a matrimonial action, regardless of the form in which title is held", and the courts have construed the term marital property broadly "in order to give effect to the concept that marriage is an economic partnership" (Sclafani v. Sclafani, 178 A.D.2d 830, 831, 577 N.Y.S.2d 711). Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (Domestic Relations Law § 236[B][1][d][1] and is to be narrowly construed (see, Sclafani v. Sclafani, supra, at 831, 577 N.Y.S.2d 711). Thus, property acquired during the marriage is presumed to be marital property, and the party seeking to establish that a particular item is indeed separate property bears the burden of proof in this regard (see, id., at 831, 577 N.Y.S.2d 711).

Defendant initially contends that the 7.3-acre parcel, which contains both the marital residence and a home for defendant's mother, was a gift from his mother and, as such, should be considered his separate property. Although title to the parcel was placed in defendant's name only, this is not determinative on the issue of whether the property is separate or marital in nature (see, Domestic Relations Law § 236[B][1][c] ), particularly where, as here, defendant's testimony at trial on this issue was equivocal. Although defendant first stated that the property was conveyed to him by his mother in 1977, he later testified that "[m]y mother gave us seven of the original 30 acres" upon which to build a home. Plaintiff also testified that the parcel was given to both parties, and it appears that both parties contributed financially to the improvements made thereto. Under these circumstances, we cannot say that Supreme Court erred in resolving what was essentially a credibility issue in plaintiff's favor (see, Sclafani v. Sclafani, supra, at 832, 577 N.Y.S.2d 711). Moreover, even if we were to accept defendant's claim that the 7.3-acre parcel constituted separate property for which he was entitled to a credit, defendant failed to offer any proof as to the value of the land prior to the improvements made by the parties. Similarly, even assuming that the residence of defendant's mother indeed passed to defendant upon her death and, hence, constituted his separate property, defendant offered no proof as to the value of that residence and, as such, it is impossible to grant him the credit he now requests.

We reach a similar conclusion with respect to certain paintings which, it is undisputed, were acquired by the parties during the course of the marriage. Although defendant contends that he liquidated certain stocks, which the record plainly establishes were his separate...