Verrilli v. Verrilli

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before WEISS; LEVINE; WEISS
• Citation: Verrilli v. Verrilli, 568 N.Y.S.2d 495, 172 A.D.2d 990 (N.Y. App. Div. 1991)
• Decision Date: 11 April 1991
• Parties: Kay VERRILLI, Respondent, v. George E. VERRILLI, Appellant.

Page 495

568 N.Y.S.2d 495

172 A.D.2d 990

Kay VERRILLI, Respondent, v. George E. VERRILLI, Appellant.

Supreme Court, Appellate Division Third Department.

April 11, 1991.

Satz & Kirshon, P.C. (Perry Satz, of counsel), Poughkeepsie, for appellant.

Ricken, Goldman, Sussman & Blythe (Alan Sussman, of counsel), Kingston, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

LEVINE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Charde, Jr., J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered June 5, 1989 in Dutchess County, upon a decision of the court.

Plaintiff and defendant were married in 1960. Four children were born of the marriage between 1961 and 1965, one of whom died shortly after birth. When the parties married, defendant had already acquired his license to practice medicine and was in the process of completing a residency in his chosen specialty of obstetrics and gynecology. He commenced practice in Westchester County and plaintiff assisted him in the office as a receptionist until their first child was born. In 1963 they moved to the Village of Rhinebeck, Dutchess County. Rhinebeck had been plaintiff's home town and her family was prominent in the community. Her father was a director of the local bank and a member of the board of the local hospital where defendant started to practice.

In 1976, the parties separated after plaintiff discovered that defendant was engaged in an extramarital affair with his office manager. Thereafter, defendant and his paramour lived together in a multifamily residence that he purchased, and she bore him two children.

The divorce action was commenced by plaintiff in 1984. A bench trial was held before Supreme Court in 1988, following which plaintiff was granted a divorce and equitable distribution. The court found that there was marital property worth an aggregate of $3,873,594, mainly consisting of 11 parcels of residential and commercial real property, defendant's pension fund and medical practice and most of defendant's collection of antique and vintage automobiles. The court essentially adopted the valuation of the properties at the time of trial given by plaintiff's experts. Except for the value of defendant's medical practice, the court directed an equitable distribution equally dividing the aggregate value of the marital property of the parties. As to defendant's medical practice, the court awarded plaintiff 30% of the value thereof and the balance to defendant. The court implemented its division by allocating between the parties the real and personal property subject to distribution. Plaintiff was awarded sole title to real and personal property worth almost $1,900,000, approximately half of which was attributable to the marital residence and adjoining acreage. Defendant's award of some $1,977,000 included retention of his medical practice, pension fund, automobiles and commercial real property. Supreme Court also awarded plaintiff permanent maintenance of $48,000 annually and a portion of her counsel and expert witness fees.

Defendant's appeal is mainly directed at the equitable distribution award. Regarding Supreme Court's disposition of the parties' real property, defendant principally advances two major objections. First, he claims that the court ignored the evidence that various parcels were acquired with his separate property and, hence, should either have been treated as separate property not subject to equitable distribution or, at the least, he should have been given appropriate credit in the award for his contributions of separate property. Specifically, he refers to his testimony that (1) one of the parcels held to be entirely marital property was purchased by him in 1963, as an unimproved lot, with the proceeds of the sale of an automobile he owned before he married plaintiff, and (2) a leasehold interest in a professional office building in Rhinebeck and fee interests in properties in Nova Scotia were acquired with funds defendant inherited from his parents. Even if we were to credit defendant's testimony, the uncontradicted evidence was that all of the foregoing parcels were either initially acquired in joint names with plaintiff, or marital income was used to complete substantial payments for the acquisition or to pay for improvements representing almost all of their current value. Thus, these parcels lost whatever character they may have had as separate property and, at most, defendant was only entitled to credit for his contributions of separate property to their value (see, Coffey v. Coffey, 119 A.D.2d 620, 622-623, 501 N.Y.S.2d 74; Parsons v. Parsons, 101 A.D.2d 1017, 1017-1018, 476 N.Y.S.2d 708).

Supreme Court, however, expressly rejected defendant's testimony that his separate property was used directly in the acquisition of the foregoing parcels. The court found more credible plaintiff's testimony that, after the parties married, they pooled their separate funds in joint accounts, out of which all purchases were made. Such commingling of separate funds in a joint account from which moneys were disbursed to purchase the real property justifies characterizing the acquisitions as marital property (see, Lischynsky v. Lischynsky, 120 A.D.2d 824, 826-827, 501 N.Y.S.2d 938). Rejection of defendant's version of the facts was well within the trial court's discretion in resolving issues of credibility. Defendant offered no documentation for his assertions regarding the funding sources for these acquisitions and his answers to questions on this subject under cross-examination were often vague and inconsistent. He thus failed in sustaining his burden of establishing that purchases during the marriage were made from separate properties (see, Sarafian v. Sarafian, 140 A.D.2d 801, 805, 528 N.Y.S.2d 192).

Alternatively, defendant contends that Supreme Court erred in awarding plaintiff 50% of the value of three valuable parcels of real property that he acquired after the parties separated, but before the divorce action was commenced. Relying upon Gross v. Gross, 160 A.D.2d 976, 554 N.Y.S.2d 699, defendant argues that his economic partnership with plaintiff ended when they permanently separated and, hence, plaintiff made no direct or indirect contributions to any property that he acquired thereafter. In our view, however, there were equities in plaintiff's favor supporting Supreme Court's division of the properties...