Southwick v. Southwick, 1

• Decision Date: 11 March 1994
• Docket Number: No. 1,1
• Citation: 202 A.D.2d 996,612 N.Y.S.2d 704
• Parties: Nancy J. SOUTHWICK, Respondent, v. Bryan J. SOUTHWICK, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 704

612 N.Y.S.2d 704

202 A.D.2d 996

Nancy J. SOUTHWICK, Respondent, v. Bryan J. SOUTHWICK, Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

March 11, 1994.

Bruce R. Bryan, Syracuse, for appellant.

D.J. and J.A. Cirando (John A. Cirando, of counsel), Syracuse, for respondent.

Before GREEN, J.P., and BALIO, LAWTON, DOERR and BOEHM, JJ.

MEMORANDUM:

Defendant husband in his appeal from a judgment of divorce seeks review of Supreme Court's award of custody of the infant issue of the marriage to plaintiff, distribution of marital property, and awards for maintenance and child support. We find no error in Supreme Court's crediting the testimony of a court-appointed psychiatrist and the recommendation of the Law Guardian to determine that it was in the best interests of the children that custody be granted to plaintiff.

We agree with defendant, however, that Supreme Court's distribution of marital property was erroneous. Such property includes "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action" (Domestic Relations Law § 236[B][1][c]. In making its equitable distribution award Supreme Court included as marital property the sum of $140,067.36, representing defendant's imputed earnings for the two years before trial when defendant was unemployed. We find no statutory basis for the inclusion of that sum as marital property and, therefore, the total marital assets found by Supreme Court must be reduced by that amount.

We conclude that the record is sufficient to support the exercise of our authority to undertake the equitable distribution of the parties' marital property (see, Cappiello v. Cappiello, 66 N.Y.2d 107, 110, 495 N.Y.S.2d 318, 485 N.E.2d 983, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558; Lichon v. Lichon, 144 A.D.2d 1021, 1022, 534 N.Y.S.2d 296, lv. denied 74 N.Y.2d 603, 542 N.Y.S.2d 518, 540 N.E.2d 713). The record establishes that, when the action was commenced, the marital assets, excluding the value of the marital residence, totaled $251,818.11, and that at trial they totaled $208,995.02. That reduction was to a great extent the result of refusal by defendant to obtain employment during the two-year period before the trial of the action and his withdrawal of large sums of cash for his expenses. It was also partially the result of defendant's giving plaintiff $30,000 for her expenses.

Defendant's conduct provided a basis for Supreme Court's determination that defendant wastefully dissipated marital assets and was guilty of economic fault (see, Griffin v. Griffin, 115 A.D.2d 587, 588, 496 N.Y.S.2d 249; Blickstein v. Blickstein, 99 A.D.2d 287, 293, 472 N.Y.S.2d 110, appeal dismissed 62 N.Y.2d 802, 494 N.Y.S.2d 1060, 484 N.E.2d 1058). Based on defendant's wasteful dissipation of marital assets, along with consideration of the remaining factors set forth in Domestic Relations Law § 236(B)(5)(d), we conclude that plaintiff was entitled to 60% of the marital assets, and defendant 40% of the marital assets. After deducting the marital debts, and applying the adjustments for various credits and debits owed as found by the trial court, plaintiff's share of the marital property is $120,800.29 and defendant's share is $80,096.81. We modify the judgment, therefore, by deleting the third and fourth decretal paragraphs and substituting therefor as a decretal paragraph that plaintiff is awarded $120,800.29 as her distributive award and defendant is awarded $80,096.81 as his distributive award.

Based upon our equitable distribution award, in conjunction with Supreme Court's award of exclusive use and possession of the unencumbered marital residence to p...