Smith v. Smith
| Decision Date | 26 June 1990 |
| Citation | 162 A.D.2d 346,557 N.Y.S.2d 22 |
| Parties | Sandra Leigh SMITH, Plaintiff-Appellant-Respondent, v. Joseph SMITH, Defendant-Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R.J. McGoey, for plaintiff-appellant-respondent.
R.W. Kohn, for defendant-respondent-appellant.
Before ROSS, J.P., and ROSENBERGER, ELLERIN and WALLACH, JJ.
Judgment, Supreme Court, Westchester County (Lucille Polk Buell, J.), entered January 6, 1989, which inter alia, granted equitable distribution of State lottery winnings by allocating 85% to the defendant-husband and 15% to plaintiff-wife, unanimously reversed, to the extent appealed from, on the law, the facts and in the exercise of discretion, to distribute the lottery winnings equally, without costs.
The parties were married on October 24, 1982 and had no children although plaintiff's son from a previous marriage resided with them. While plaintiff played the State lottery ("Lotto") every week, her husband never played because he thought it was a waste of money they should be saving in order to buy a house. During the third week of August, 1985, however, defendant and 21 of his co-workers each contributed one dollar toward the purchase of lottery tickets and won the grand prize of 13 1/2 million dollars. Defendant is to receive 21 annual gross installments of $30,989 netting him a total of $24,790 a year, after taxes. These winnings, as the Supreme Court found, are the parties' only substantial marital asset and form the basis of the instant dispute.
The 31 year old plaintiff is currently employed as a travel agent earning $17,732 a year and had been so employed throughout her marriage. Defendant, 32 years old, was employed as a mechanic but has since been promoted to inspector. His gross salary is approximately $30,000 a year. At the commencement of this action, the parties had been married for five years. The marital residence was a rented apartment which defendant vacated on December 15, 1985. During the marriage, the parties used the wife's paycheck for living expenses and deposited the husband's paycheck into a joint savings account. After the lottery, however, defendant placed his winnings into a separate account to which only he had access.
After determining that the lottery winnings were "marital property" as defined by DRL 236 Part B(1)(c), and after analyzing the factors set forth in DRL 236 Part B(5)(d), the Supreme Court awarded plaintiff only 15% of the lottery winnings as her share under the Equitable Distribution Law because the lottery ticket was acquired solely through the efforts of defendant. We find that a more equitable distribution would be to divide the lottery winnings equally and modify the judgment accordingly.
The parties do not dispute the finding that the lottery winnings are marital property subject to equitable distribution pursuant to DRL 236 Part B(1)(c); (5)(c) (see, Ullah v. Ullah, 161 A.D.2d 699, 555 N.Y.S.2d 834; Mir v. Mir, 135 A.D.2d 690, 522 N.Y.S.2d 590; Lynch v. Lynch, NYLJ, November 10, 1988, P. 28, Col. 1 (Sup.Ct., Westchester County); Jordan v. Jordan, NYLJ, August 20, 1985, P. 11, Col. 6 (Sup.Ct., Kings County). Subdivision (5)(c) of DRL 236, Part B provides that "marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties." The equitable distribution law creates a presumption that marital property consists of "all property acquired by either or both spouses during the marriage ... regardless of the form in which title is held" (DRL 236 Part B(1)(c); Jordan v. Jordan, supra ). The lottery winnings are marital property even though they were acquired by the efforts of defendant (Ullah v. Ullah, supra ). Although there is no requirement that the distribution of each marital asset be on an equal or 50-50 basis (Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199), it has been stated that where both spouses equally contribute to the marriage...
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