Sinnott v. Sinnott

• Decision Date: 12 May 2021
• Docket Number: 2019–06042,Index No. 200403/16
• Citation: 194 A.D.3d 868,149 N.Y.S.3d 441
• Parties: Kathleen A. SINNOTT, respondent-appellant, v. Otis SINNOTT, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 868
149 N.Y.S.3d 441

Kathleen A. SINNOTT, respondent-appellant,
v.
Otis SINNOTT, appellant-respondent.

2019–06042
Index No. 200403/16

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

Argued—February 23, 2021
May 12, 2021

149 N.Y.S.3d 445

DiMascio & Associates, LLP, Garden City, N.Y. (Lisa J. Silverman, Katelyn M. Moloney, and John P. DiMascio, Jr., of counsel), for appellant-respondent.

Schwartz Sladkus Reich Greenberg Atlas, LLP, New York, N.Y. (Matthew C. Kesten of counsel), for respondent-appellant.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

194 A.D.3d 869

In an action for divorce and ancillary relief, the defendant appeals, and the plaintiff cross-appeals, from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Thomas A. Rademaker, J.), entered April 19, 2019. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated December 18, 2018, made after a nonjury trial, (1) denied the defendant a separate property credit of $937,000, and, in effect, rejected the testimony of the defendant's expert on the value of certain real property located in Santa Fe, New Mexico, (2) directed the defendant to pay child support and add-on expenses until the parties’ unemancipated child reached the age of 22 years and six months under stated circumstances, (3) directed the defendant to pay 80% of that child's private high school tuition, fees, books, supplies, materials, class trips, enrichment activities, and all school-related expenses, and (4) directed that certain investment accounts be equally divided between the parties

149 N.Y.S.3d 446

without specifying a date of valuation for those accounts or limiting distribution only to marital property. The judgment of divorce, insofar as cross-appealed from, (1) directed the defendant to pay child support in the sum of only $4,281.44 per month and only 80% of add-on expenses for the parties’ unemancipated child, (2) declined to make the award of maintenance and child support retroactive to the date of commencement of the action, (3) declined to direct the defendant to pay the cost of health insurance for the plaintiff, and (4) declined to direct the defendant to obtain or maintain life insurance in an amount sufficient to secure his support obligations.

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof requiring the defendant to pay child support and add-on expenses until the parties’ unemancipated child reaches the age of 22 if that child is still attending college, and substituting therefor a provision directing the defendant to pay child support and add-on expenses until that child reaches the age of 21 or is otherwise emancipated, (2) by deleting the provision thereof directing the defendant to pay 80% of that child's class trips, enrichment activities, and all school-related expenses, (3) by deleting the provision thereof directing the defendant to pay child support in the sum of $4,281.44 per month commencing on January 1, 2019, and substituting therefor a provision directing the defendant to pay child support in the sum of $4,591.42 per month retroactive to February 16, 2016, (4) by deleting the provision thereof directing

194 A.D.3d 870

the defendant to pay 80% of the parties’ unemancipated child's unreimbursed medical expenses and substituting therefor a provision directing the defendant to pay 92.6% of that child's unreimbursed medical expenses, (5) by deleting so much of the provision as awarded the plaintiff maintenance commencing on January 1, 2019, and substituting therefor a provision awarding the plaintiff maintenance retroactive to February 16, 2016, (6) by adding thereto a provision directing the defendant to pay the plaintiff's health insurance costs for the same duration as the defendant's maintenance obligation, and (7) by adding thereto a provision directing the defendant to obtain or maintain an appropriate amount of life insurance with death benefits adequate to secure the payment of maintenance, child support, and health insurance; as so modified, the judgment is affirmed insofar as appealed from and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for (1) a calculation of the amount of retroactive maintenance and child support arrears, including add-ons, from February 16, 2016, giving the defendant appropriate credit for voluntary child support payments made prior to a pendente lite order dated August 16, 2017, any voluntary maintenance payments made during the pendency of the action, and any temporary maintenance and child support payments made pursuant to the pendente lite order, (2) a calculation of any amounts owed by the defendant to the plaintiff for the plaintiff's health insurance costs from February 16, 2016, and (3) a calculation of the appropriate amount of life insurance with death benefits to be obtained by the defendant to secure the payment of maintenance, child support, and health insurance costs for so long as the defendant is obligated to make such payments.

The parties were married in 1989, and are the parents of one child born in 2003 (hereinafter the child), as well as two emancipated children. The plaintiff commenced this action on February 16, 2016, by filing a summons and complaint. Pursuant to a so-ordered custody and parenting stipulation, the plaintiff has sole legal

149 N.Y.S.3d 447

and residential custody of the child. After a nonjury trial on the outstanding issues of, inter alia, child support, maintenance, and equitable distribution, the Supreme Court issued a decision dated December 18, 2018. The court subsequently entered a judgment of divorce dated April 17, 2019, which incorporated the parties’ stipulation and referenced the December 18, 2018 decision. The defendant appeals from so much of the judgment of divorce as denied him a separate property credit of $937,000, and, in effect, rejected the testimony of his expert on the value of certain real property located

194 A.D.3d 871

in Santa Fe, New Mexico, (2) directed the defendant to pay child support and add-on expenses until the child reached the age of 22 years and six months under stated circumstances, (3) directed the defendant to pay 80% of the child's private high school tuition, fees, books, supplies, materials, class trips, enrichment activities, and all school-related expenses, and (4) directed that certain investment accounts be equally divided between the parties without specifying a date of valuation for those accounts or limiting distribution only to marital property. The plaintiff cross-appeals from so much of the judgment of divorce as (1) directed the defendant to pay child support in the sum of only $4,281.44 per month and only 80% of add-on expenses for the child, (2) declined to make the award of maintenance and child support retroactive to the date of commencement of the action, (3) declined to direct the defendant to pay the cost of health insurance for the plaintiff, and (4) declined to direct the defendant to obtain or maintain life insurance in an amount sufficient to secure his support obligations.

The defendant contends that the Supreme Court should have awarded him a separate property credit of $937,000, reflecting inherited funds he alleges he contributed towards the purchase of a marital residence in Santa Fe, New Mexico (hereinafter the Santa Fe property). "Where a party contributes his or her separate property toward the purchase of a marital asset, such as a marital residence, the party should be given a credit for the amount so contributed prior to the equitable division of the asset" ( Westreich v. Westreich, 169 A.D.3d 972, 977, 94 N.Y.S.3d 150, lv denied, 33 N.Y.3d 914, 2019 WL 4383891 ; see Fields v. Fields, 15 N.Y.3d 158, 167, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ). The proceeds from an inheritance are separate property (see Domestic Relations Law § 236[B][1][d][1] ; Renck v. Renck, 131 A.D.3d 1146, 1148, 17 N.Y.S.3d 431 ). However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property (see Candea v. Candea, 173 A.D.3d 663, 666, 104 N.Y.S.3d 637 ; Belilos v. Rivera, 164 A.D.3d 1411, 1412, 84 N.Y.S.3d 536 ; Renck v. Renck, 131 A.D.3d at 1148, 17 N.Y.S.3d 431 ; Signorile v. Signorile, 102 A.D.3d 949, 950, 958 N.Y.S.2d 476 ; Crescimanno v. Crescimanno, 33 A.D.3d 649, 649, 822 N.Y.S.2d 310 ). To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest (see Renck v. Renck, 131 A.D.3d at 1149, 17 N.Y.S.3d 431 ; Signorile v. Signorile, 102 A.D.3d at 950, 958 N.Y.S.2d 476 ; Crescimanno v. Crescimanno, 33 A.D.3d at 649, 822 N.Y.S.2d 310 )...