Ullah v. Ullah

• Decision Date: 21 May 1990
• Citation: 161 A.D.2d 699,555 N.Y.S.2d 834
• Parties: Diane ULLAH, Respondent-Appellant, v. Abraham ULLAH, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 834

555 N.Y.S.2d 834

161 A.D.2d 699

Diane ULLAH, Respondent-Appellant, v. Abraham ULLAH, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

May 21, 1990.

Blutrich, Falcone & Miller, New York City (Robert J. Miller, Alex Mocega and Paul T. Vinik, of counsel), for appellant-respondent.

Gerard A. Imperato, Brooklyn, for respondent-appellant.

Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Rigler, J.), entered November 17, 1988, which, inter alia, adjudged that the parties' $8 million New York State Lottery award constituted marital property and equitably distributed that award into two equal shares, and the plaintiff wife cross-appeals from so much of the same judgment as denied her application for counsel fees and limited the award of child support for the parties' two children to the amount of $7,500 per year per child.

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff Diane Ullah and the defendant Abraham Ullah were married in April 1983. This union produced one daughter, Lauren Elizabeth, who was born in October 1984, and Mr. Ullah adopted his wife's daughter Marianne, who was the product of the plaintiff's previous marriage. Marianne, born in April of 1976, suffers from Turner's Syndrome, a genetic disorder which is manifested by numerous physical symptoms which has necessitated special medical and educational treatment.

The Ullahs' marriage was apparently rather stormy. In November 1986 however, during a period of relative calm, Mr. Ullah purchased a New York State Lottery "Lotto" ticket which proved to be an $8 million winner, payable in 21 annual installments of approximately $380,000 each before taxes. Within months after winning this prize both parties resigned from their respective employments.

The record indicates that the parties jointly determined the manner in which they disposed of much of the initial Lotto installment received in December 1986. Indeed, gifts were made to both parties' respective families and friends and the defendant conceded at the trial that the lottery prize, which was won on a wager of a marital dollar, was considered by him to constitute joint income. On the instant appeal, however, the defendant now argues that the lottery award is his separate property which is not subject to equitable distribution. While the defendant advances several creative arguments, they are nonetheless devoid of merit.

Pursuant to Domestic Relations Law § 236(B)(1)(c), marital property is defined, in pertinent part, as "all property acquired by either or both spouses during the marriage regardless of the form in which title is held". Consistent with the legislative intent to treat modern marriages as economic partnerships (see, 1980 N.Y. Legis.Ann., at 129-130), clearly the unambiguous, plain meaning of Domestic Relations Law § 236(B)(1)(c) mandates that a lottery jackpot, including future payments, the right to which arose during the marriage by virtue of the efforts of one spouse, and upon a wager of marital funds, constitutes marital property subject to equitable distribution (see, Jordan v. Jordan, NYLJ, Aug. 20, 1985, at 11, col. 6; cf., Kobylack v. Kobylack, 110 Misc.2d 402, 442 N.Y.S.2d 392, mod., 96 A.D.2d 831, 465 N.Y.S.2d 581, revd. on other grounds 62 N.Y.2d 399, 477 N.Y.S.2d 109, 465 N.E.2d 829; see also, Giedinghagen v. Giedinghagen, 712 S.W.2d 711 [Mo.]; Burden v. Burden, Court of Appeals of Ohio, Auglaize County, October 7, 1987, 1987WL18222, opn. by McBride, J.).

Moreover, contrary to the defendant's contentions, the instant lottery award is not separate property in the nature of a gift or an inheritance (see, Domestic Relations Law § 236[B][1][d][1]. Indeed, by the defendant's own admission the parties treated their winnings as joint income, and in reliance upon that joint income, both quit their jobs. Thus, by the parties' own conduct (see, Brown v. Brown, 148 A.D.2d 377, 538 N.Y.S.2d 945), this award was clearly...