Vogel v. Vogel

• Court: New York Supreme Court — Appellate Division
• Citation: Vogel v. Vogel, 549 N.Y.S.2d 438, 156 A.D.2d 671 (N.Y. App. Div. 1989)
• Decision Date: 26 December 1989
• Parties: Linda VOGEL, Respondent-Appellant v. Stuart VOGEL, Appellant-Respondent.

Page 438

549 N.Y.S.2d 438

156 A.D.2d 671

Linda VOGEL, Respondent-Appellant v. Stuart VOGEL, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 26, 1989.

Stephen Paul Blank, P.C., New York City (Stephen L. Oppenheim, of counsel), for appellant-respondent.

Ferraro Goldstein Yatto & Zugibe, New City (Arthur J. Ferraro, of counsel; David A. Blumberg, on the brief), for respondent-appellant.

Before MOLLEN, P.J., and BRACKEN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant appeals and the plaintiff cross-appeals, as limited by their respective briefs, from stated portions of a judgment of the Supreme Court, Rockland County (Edelstein, J., on decision; Miller, J., on judgment), dated August 7, 1987, which, inter alia, directed the distribution of marital assets, directed the defendant to pay maintenance and child support, directed the defendant to pay the remaining portion of the accumulated arrears representing pendente lite maintenance and child support, and awarded the plaintiff the sum of $5,000 in attorney's fees.

ORDERED that the judgment is reversed insofar as appealed and cross-appealed from, on the law and the facts, without costs or disbursements, the 7th through 24th decretal paragraphs thereof are deleted, and a new trial is granted with respect to the economic issues in the case, in accordance herewith; and it is further,

ORDERED that the defendant is directed to continue maintenance and child support payments pursuant to the 18th and 19th decretal paragraphs of the judgment pending the new determination.

In this matrimonial action, the parties appeal from several economic aspects of the judgment of the trial court. The judgment, insofar as it grants a divorce to the parties, resolves their dispute over child custody, permits the plaintiff to resume the use of her prior name, and provides for continued jurisdiction, has not been challenged on appeal. The remaining provisions of the judgment, relating to the distribution of marital property, maintenance, and child support, are either directly challenged on appeal or inextricably related to provisions which are challenged on appeal. We find that there were several errors committed by the trial court which affect the validity of the challenged portions of the judgment, and we therefore modify the judgment accordingly and direct a new trial with respect thereto.

First, we note that the trial court failed to evaluate the major asset of the marriage, the marital residence. In its memorandum decision dated May 20, 1987, the court stated that the plaintiff contended that the marital residence was worth $192,000 and that the defendant contended that it was worth $235,000, and then went on to declare that in view of other aspects of its decision, "a precise valuation of the marital residence need not be made at this time". However, we see nothing in the remaining aspects of the trial court's decision which justifies its failure to place a value upon the largest asset of the marriage.

Second, the court erred in evaluating the largest marital asset distributed to the husband, i.e. Motel Associates of Belle Glade, a limited partnership which constitutes a "tax shelter". On appeal, the plaintiff concedes that she "did not offer any present valuation for this limited partnership interest other than its actual cost basis". The plaintiff thus "present[ed] no method for such [complicated] evaluation" (Pulitzer v. Pulitzer, 134 A.D.2d 84, 89, 523 N.Y.S.2d 508, noting complicated nature of evaluation of tax shelters). This asset may well be valueless, as is now contended by the defendant.

Third, the court erred during the course of trial with respect to its rulings concerning the relevance of certain proof that an item of marital property may have been acquired in exchange for property received by one of the parties as a result of a gift. Pursuant to Domestic Relations Law § 236(B)(1)(d)(1), "separate property shall mean * * * property acquired * * * by * * * gift from a party other than the spouse." Pursuant to Domestic Relations Law § 236(B)(1)(d)(3), separate property also means "property acquired in exchange for * * * separate property". As noted by the Appellate Division, Fourth Department, in Ackley v. Ackley, 100 A.D.2d 153, 155, 472 N.Y.S.2d 804, "[i]t is clear from the language of the statute that the Legislature intended that a gift from a third party to one spouse be considered the separate property of that spouse".

The defendant testified that he received bonds in the amount of $42,872.30 from his mother as a gift to him, and that this money was "used specifically for the purchase of the [marital residence]". These bonds were delivered to the defendant individually, not to him and the plaintiff jointly (cf., Ackley v. Ackley, supra) and thus arguably constituted separate property, which the defendant then contributed to the creation of a marital asset. Under these circumstances, the defendant would be entitled to a credit against the marital estate in the sum of $42,872.30 (see, Lauricella v. Lauricella, 143 A.D.2d 642, 532 N.Y.S.2d 907; Nalbandian v. Nalbandian, 135 A.D.2d 621, 522 N.Y.S.2d 199; Lisetza v. Lisetza, 135 A.D.2d 20, 24-25, 523 N.Y.S.2d 632; Monks v. Monks, 134 A.D.2d 334, 520 N.Y.S.2d 810; Coffey v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74).

The trial court ruled, in effect, that as a matter of law, any gift made by a third party to one spouse is presumed to constitute a gift to both spouses jointly, so that the question of whether certain marital property might be traceable to a gift is essentially irrelevant. Such a determination is clearly erroneous since, as we have previously stated, the language of the statute regarding separate property reflects the intent of the Legislature that a gift from a third-party to one spouse is to be considered the separate property of that spouse (Domestic Relations Law § 236[B][1][d][1]. While the defendant, who claims to be the intended donee of the separate property, failed to call his mother, the alleged...