Spera v. Spera

• Decision Date: 02 March 2010
• Citation: 71 A.D.3d 661,898 N.Y.S.2d 548
• Parties: Dennis SPERA, respondent, v. Maria SPERA, appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 548
71 A.D.3d 661

Dennis SPERA, respondent,
v.
Maria SPERA, appellant.

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

March 2, 2010.

898 N.Y.S.2d 549

Taub, Hametz & Waldman, PLLC, Mineola, N.Y. (Susan A. Rubin and Ivan W. Hametz of counsel), for appellant.

Dennis Spera, Brookhaven, N.Y., respondent pro se.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

71 A.D.3d 661

In an action for a divorce and ancillary relief, the defendant

71 A.D.3d 662

appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.), entered July 30, 2008, which, upon a decision of the same court, dated June 19, 2008, made after a nonjury trial, inter alia, (1) directed her to provide the plaintiff with records regarding the balance and/or payments and any distributions she received for an Invesco Fund and an American Express Investment Fund and to forward to the plaintiff one half of any distributions she received, and (2) directed her to pay the plaintiff the sum of $21,200 from her share of the sale of the proceeds of the marital residence, held in escrow by her counsel.

ORDERED that the judgment is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the eighth and ninth decretal paragraphs thereof regarding the Invesco Fund and American Express Investment Fund, and (2) deleting the eleventh decretal paragraph thereof directing the defendant to pay the plaintiff the sum of $21,200 from her share of the proceeds of the sale of the marital residence held in escrow and substituting therefor a provision directing the defendant to pay the plaintiff the sum of $6,700 from her share of the proceeds of the sale of the marital residence held in escrow; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

"In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property" ( Milnes v. Milnes, 50 A.D.3d 750, 750, 857 N.Y.S.2d 168; see Payne v. Payne, 4 A.D.3d 512, 513-514, 771 N.Y.S.2d 714). Nonetheless, "[w]here it is evident that the Supreme Court considered all relevant factors and the reasons for its decision are articulated, the court is not required to specifically cite to and analyze each statutory factor" ( Milnes v. Milnes, 50 A.D.3d at 750, 857 N.Y.S.2d 168, citing O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 498 N.Y.S.2d 743, 489 N.E.2d 712). When, as here, the Supreme Court fails to set forth the statutory factors it considered, and it is not

898 N.Y.S.2d 550

evident from the record that the court considered all the relevant factors, this Court may, in the interest of judicial economy, exercise its power to determine the equitable distribution of the parties' marital property ( see Fanelli v. Fanelli, 215 A.D.2d 718, 720, 627 N.Y.S.2d 425; Rossi v. Rossi, 163 A.D.2d 376, 377, 558 N.Y.S.2d 108), "where the record upon which the trial court would base such a determination is fully before it" ( Payne v. Payne, 4 A.D.3d at 514, 771 N.Y.S.2d 714). Under the instant circumstances, we therefore turn to the plaintiff's contentions on appeal regarding equitable distribution, rather than holding the appeal in abeyance and remitting the matter to the Supreme Court for compliance with

71 A.D.3d 663

Domestic Relations Law § 236(B)(5)(g) ( see Lounsbury v. Lounsbury, 300 A.D.2d 812, 817, 752 N.Y.S.2d 103; Chasin v. Chasin, 182 A.D.2d 862, 864, 582 N.Y.S.2d 512).

Although the plaintiff presented evidence that the parties' joint Invesco Fund and American Express Investment Fund existed and had some value in 2001, he presented no evidence of...