Zacharek v. Zacharek

• Decision Date: 24 January 1986
• Citation: Zacharek v. Zacharek, 498 N.Y.S.2d 625, 116 A.D.2d 1004 (N.Y. App. Div. 1986)
• Parties: Jean ZACHAREK, Respondent-Appellant, v. Zygmund J. ZACHAREK, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 625

498 N.Y.S.2d 625

116 A.D.2d 1004

Jean ZACHAREK, Respondent-Appellant, v. Zygmund J. ZACHAREK, Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

Jan. 24, 1986.

Ronile Lawrence by Deborah Goldman, Syracuse, for appellant-respondent.

Manes, Rifken, Frankel & Greenman, P.C. by Sidney Manes, Syracuse, for respondent-appellant.

Before CALLAHAN, J.P., and DENMAN, BOOMER, PINE and SCHNEPP, JJ.

MEMORANDUM:

In distributing the marital property, the trial court did not abuse its discretion by awarding plaintiff approximately 70 percent of the marital property. When the parties married, plaintiff sold her residence and deposited the proceeds, $18,269, into a joint savings account with defendant. During the marriage, the parties spent some $20,000 to remodel the residence owned by defendant; $9,050 of this amount came from the joint savings account. During the marriage, plaintiff was injured in an automobile accident and received a damage award in the amount of $6,500. Although this was the separate property of the wife, $6,000 of it became marital property when she deposited that amount in a joint account with defendant at Dean Witter. The parties also deposited in that account the sum of $3,233, the proceeds of a tax refund largely attributable to the liquidation of plaintiff's business, which she owned before the marriage. As noted by the trial justice, "defendant's attitude toward his separate property differed from his wife's, for unlike his wife, he did not make his assets available for their mutual benefit."

Under the circumstances, it was proper for the trial justice to award plaintiff, as her equitable share of the marital property, the proceeds of the Dean Witter account, and a distributive award of $15,000 representing her equitable share of the contributions made to the improvement of defendant's residence. Equitable distribution is not necessarily equal distribution (see Ackley v. Ackley, 100 A.D.2d 153, 156, 472 N.Y.S.2d 804). Here, in awarding plaintiff more than an equal portion of the marital property, the court properly considered the origin of the property to achieve an equitable distribution (see Scheinkman, Practice Commentaries to McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 236 B:9, p. 195).

We find no fault with the court's computation of plaintiff's interest in defendant's pension. Defendant testified that he was entitled to a lump-sum award of $21,000 based on 15 years of...