Suppa v. Suppa

• Decision Date: 27 December 2013
• Citation: 2013 N.Y. Slip Op. 08711,112 A.D.3d 1327,978 N.Y.S.2d 502
• Parties: Patricia M. SUPPA, Plaintiff–Respondent, v. Frank J. SUPPA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1327

978 N.Y.S.2d 502

2013 N.Y. Slip Op. 08711

Patricia M. SUPPA, Plaintiff–Respondent,

v.Frank J. SUPPA, Defendant–Appellant.

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

Dec. 27, 2013.

Getnick, Livingston, Atkinson & Priore, LLP, Utica (Thomas L. Atkinson of Counsel), for Defendant–Appellant.

Thomas F. O'Brien, Clinton, for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and VALENTINO, JJ.

MEMORANDUM:

On appeal from a judgment of divorce that, inter alia, distributed marital property, defendant contends that Supreme Court erred in finding that he committed fraud because the court failed to set forth any basis for that finding. We reject that contention. The basis for that finding is set forth in the court's findings of fact, which are supported by the record, i.e., that defendant agreed to add plaintiff's name to his bank accounts containing a certain amount of money in exchange for plaintiff adding his name to the deed of her separate property, but that defendant withdrew those funds from the bank accounts the following week. While we agree with defendant that the court erred in considering whether to impose a constructive trust because defendant did not seek that remedy, we reject his contention that the court's decision on equitable distribution was flawed as a result of its mere consideration of such a remedy.

Contrary to defendant's contention, the court's valuation of the marital home was appropriate. The value was within the range of values provided by the parties' experts ( see generally Atwal v. Atwal [Appeal No. 2], 270 A.D.2d 799, 799, 704 N.Y.S.2d 765, lv. denied95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953; Francis v. Francis, 262 A.D.2d 1065, 1066, 692 N.Y.S.2d 263). Inasmuch as defendant did not establish that the value of the marital home increased as a result of his work on the property, the court did not err in failing to provide defendant with a credit for that work ( see Vanyo v. Vanyo, 79 A.D.3d 1751, 1751–1752, 914 N.Y.S.2d 492; Juhasz v. Juhasz, 59 A.D.3d 1023, 1024–1025, 873 N.Y.S.2d 799, lv. dismissed12 N.Y.3d 848, 881 N.Y.S.2d 392, 909 N.E.2d 85). In addition, the court properly held that defendant did not establish that the cost of the improvements to the home were made from separate as opposed to marital funds ( see Reed v. Reed, 55 A.D.3d 1249, 1250, 865 N.Y.S.2d 414). Indeed, defendant testified that the household expenses were paid from one account and that at least some of plaintiff's income as well as his income was deposited in that account. The court credited defendant with the down payment he made on the house from his separate property, but properly declined to credit defendant with his payment toward the closing costs because those expenses were not a part of the home's value ( see generally Mirand v. Mirand, 53 A.D.3d 1149, 1150, 861 N.Y.S.2d 917).

The court properly exercised its discretion in awarding plaintiff approximately half the amount of her counsel fees. Defendant contends that plaintiff...