Tsavaris v. Tsavaris

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE; BREITEL; COOKE
• Citation: Tsavaris v. Tsavaris, 40 N.Y.2d 970, 390 N.Y.S.2d 820 (N.Y. 1976)
• Decision Date: 30 November 1976
• Parties: , 359 N.E.2d 331 Sophia TSAVARIS, Appellant, v. Nikitas TSAVARIS, Respondent.

Page 820

390 N.Y.S.2d 820

40 N.Y.2d 970, 359 N.E.2d 331

Sophia TSAVARIS, Appellant, v. Nikitas TSAVARIS, Respondent.

Court of Appeals of New York.

Nov. 30, 1976.

Leon S. Gazetas and Helen B. Stoller, New York City, for appellant.

Jay Nicholas Long, New York City, and Bernard Meyerson, Brooklyn, for respondent.

MEMORANDUM.

Order of the Appellate Division affirmed, without costs, on the memorandum at the Appellate Division with the following added comment: Concerning the joint bank account and its aftermath the record was sparse, much too sparse. The trial court although it made fromal findings of fact, made none with respect to the bank account. The only clear fact established in the evidence was the opening of the account with the proceeds of an accident injury award. It was as a result of that accident that the husband has been, concededly, rendered totally disabled and is living on Soci Security benefits. Indeed, the support for the wife and the minor children of the marriage derives from similar Social Security benefits. There was no positive evidence, as distinguished from negative inference, that the funds, once in the joint account, are still in existence, except as to the sums deposited in accounts for the benef of the children. This matrimonial action, uncluttered by unconnected causes of action related to property or conversion of moneys, is distinguishable from a plenary action to recover on theory of a joint account gift. Hence, there was no warrant, as the Appellate Division held, on the evidence in this all but perfunctory record, to direct a transfer of existing assets to the wife or to establish title to property (Domestic Relations Law, § 234; cf. Panetta v. Panetta, 35 A.D.2d 967, 317 N.Y.S.2d 818).

COOKE, Judge (dissenting in part).

In an action for divorce, plaintiff wife sought custody of the children, alimony and child support, possession of the marital residence (that being one of four apartments in a multiple dwelling owned by defendant), counsel fees, and such other and further relief as the court deemed just and proper.

At trial, defendant husband took the stand and was questioned about funds he had used to open a joint bank account in his name and in that of his wife. These funds, approximately $42,000, constituted a portion of a workmen's compensation award which defendant received in 1969 to compensate him for a 1965 accident that had rendered him unable to work. In 1972 and prior to this action, defendant had withdrawn the balance of the joint account, placing it in an account bearing his name alone.

Although not relevant to a determination of the wife's entitlement to one half the funds, but rather to the computation of what one half would be, the evidence shows that $4,000 of the $42,000 was placed in trust accounts for the children and, further, that a portion of the money, an amount that may have ranged anywhere from $2,000 to $7,500 was spent on a family trip to Greece. When questioned about the remaining $30,000 the husband, through an interpreter, responded 'I ate it'. Although a dispute arose between counsel as to whether the response was sarcastic, it is possible that the husband was attempting to express that he had used the money to sustain himself during the two previous years. Defendant's claim at trial was that he had remaining but $570 of the $30,000. Plaintiff, for her part, testified to the effect that she had not received any of the money in the joint account and speculated that her husband had not actual used the funds, but rather had hidden the money or helped his brothers. Finding the wife a more credible witness, the court granted her the relief requested.

The Appellate Division erred...