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« Do Not Forget Your Credit | Main

Credit Counts Again

Although the following case comes out of the fourth department, many married individuals pay off Supreme Court, Appellate Division, Fourth Department, New York. Craig J. MIRAND, Plaintiff-Respondent, v. Lisa M. MIRAND, Defendant-Appellant. July 11, 2008 James P. Renda, Buffalo, for Defendant-Appellant. Rosenthal, Siegel & Muenkel, LLP, Buffalo (Barbara A. Piazza of Counsel), for Plaintiff-Respondent. MARTOCHE, J.P., SMITH, CENTRA, LUNN, AND PINE, JJ. MEMORANDUM: On appeal from a judgment in this action for divorce and ancillary relief, defendant contends that Supreme Court erred in awarding plaintiff sole custody of the parties' child and directing defendant to pay child support. We reject that contention. Great deference is accorded to the court's custody determination where, as here, that determination is based upon the court's assessment of the credibility and character of the parties (see Wideman v. Wideman, 38 AD3d 1318, 1319;Matter of Vincent A.B. v. Karen T., 30 AD3d 1100, 1101-1102,lv denied7 NY3d 711;Matter of Nunnery v. Nunnery, 275 A.D.2d 986, 987). We conclude that the court's determination has a sound and substantial basis in the record and should not be disturbed (see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113;Matter of Thayer v. Ennis, 292 A.D.2d 824).
Contrary to the further contention of defendant, the court properly confirmed that part of the Referee's report "recommending" that plaintiff shall have a credit in the sum of $54,770.58, representing his contribution of separate property in order to reduce the mortgage on the marital residence and to pay off a second mortgage in its entirety on the marital residence. That contribution retains its separate character and thus is not subject to equitable distribution (see Moses v. Moses, 231 A.D.2d 850;Coffey v. Coffey, 119 A.D.2d 620, 622). We agree with defendant, however, that the court erred in confirming that part of the Referee's report "recommending" a credit to plaintiff in the amount of $220, based on his payment for an appraisal of the marital residence. That amount was merely payment for a service, rather than a contribution to the value of the marital residence that plaintiff was entitled to recover. We therefore modify the judgment accordingly. We also agree with defendant that the court erred in confirming that part of the Referee's report "recommending" that plaintiff be awarded possession of the parties' 2004 Buick as his separate property. That asset was purchased during the marriage and, although plaintiff contributed the majority of its purchase price, defendant transferred title to another vehicle to plaintiff and paid him an additional $2,000. We therefore conclude that the Buick constituted marital property subject to equitable distribution (see generally Domestic Relations Law § 236[B][1][c] ). The parties concede that the value of the Buick was $20,425 at the time of trial, and we conclude that such amount must be distributed equally between them. Inasmuch as possession of the vehicle was awarded to plaintiff, we reduce the amount of his credit by $8,212.50, i.e., one half of the value of the Buick less the $2,000 that the Referee properly determined was contributed by defendant as a down payment for the Buick. We therefore further modify the judgment accordingly. Contrary to the further contention of defendant, the court did not abuse its discretion in denying her quantum meruit application for attorneys' fees (see generally § 237[a]). We have considered defendant's remaining contentions and conclude that they are without merit. It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by granting in part the motion to reject part of the Referee's report, confirming in part the Referee's report and providing that plaintiff is not entitled to a credit for an appraisal of the marital residence, that the 2004 Buick is marital property and that plaintiff shall have a credit in the amount of $46,558.08 and as modified the judgment is affirmed without costs. mortgages with separate property, and when the marriage goes south they want their money back. Now if the appellate division could only order the other spouse to give back the wasted years.

« Family Court Act 812 Now Everybody Should Worry | Main | Credit Counts Again »

Do Not Forget Your Credit

Recently the the Appellate Division held that payment of premarital debt with marital funds should be credited as an asset of the marriage. This case is extremely important. If graduate school loans for medical, dental or law school were paid during the marriage, or your spouse's student loans for college were repaid, you are entitled to a credit. Read the following case and be enlightened: In Mahoney-Buntzman v Buntzman, --- N.Y.S.2d ----, 2008 WL 2066586 (N.Y.A.D. 2 Dept.) Supreme Court, among other things, fixed the wife's her distributive award at $2,467,151.43, awarded her 35% of the value of certain shares of stock and stock options issued to the defendant by his employer, and awarded her durational maintenance of $2,500 a month for 15 months.
During the parties' marriage, the defendant took out a student loan in the amount of $48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. The plaintiff contended on appeal that the trial court erred in failing to award her a 50% credit with respect to the student loan. The Appellate Division agreed. The defendant's expert testified that the doctoral degree earned by the defendant during the marriage did not enhance his earnings, and thus, provided no benefit to the marriage, and there was no distributive award of the value of the doctorate degree to the plaintiff in light of its zero enhanced earning capacity value. The student loan debt was incurred to satisfy the defendant's separate interest and therefore was his own separate obligation. Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, for the student loan debt incurred by the defendant during the marriage to attain this degree. The Appellate Division agreed with plaintiff's contention that the trial court erred in not crediting her with 50% of the defendant's pre-marital debts paid with marital funds during the marriage: maintenance paid to the defendant's first wife in the total amount of $58,545, and $7,000 paid in 1998 as a settlement of a loan for a boat purchased by the defendant before the marriage but surrendered to the bank in 1993 prior to the marriage for nonpayment of the boat loan. The defendant's maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties' marriage and were solely his responsibility. Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50 as to the maintenance payments to the defendant's first wife and $3,500 as to the boat loan. It also agreed with the plaintiff's contention that the trial court improvidently exercised its discretion in declining to direct that the defendant pay the parties' children's college tuition and expenses until they reach the age of 21 upon finding that the children had sufficient resources of their own to pay for their college education from trust funds given to them by their paternal grandfather. In view of the defendant's own significant financial resources in contrast to the plaintiff's limited financial resources, and the defendant's own testimony that the parties agreed not to use the children's trust funds to pay for their college tuition and expenses, as well as giving due consideration to the factors listed in Domestic Relations Law s 240(1-b)(c)(7), the defendant should pay for the childrens' college tuition and expenses until they reach the age of 21.

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Family Court Act 812 Now Everybody Should Worry

Family Court Act 812 (1) (c) was amended to include in the list of persons who the court has jurisdiction to grant an order of protection, persons formerly married to one another, "regardless of whether they still reside in the same household" and persons who are not related by consanguinity or affinity. Subdivision (e) was added to Family Court Act 812 include in the list of persons who the court has jurisdiction to grant an order of protection, "persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time". For purposes of subdivision (e), neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship". Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Laws of 2008,, Ch 325, § 10, effective July 21, 2008). [Criminal Procedure Law 530.11 (1) (c) was amended in the same manner and an identical subdivision (e) was added. See Laws of 2008, Ch 325, § 11, effective July 21, 2008


 
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