Lamparillo v. LamparilloLamparillo v. Lamparillo
In an action for a divorce and ancillary relief, the defendant
Ordered that the judgment is modified, on thе facts and in the exercise of discretion, by (1) deleting the provision thereof awarding the defendant a separatе property credit in the sum of $180,000 and directing that the credit be satisfied by his parents’ repayment to him of a loan made to them by the parties, and (2) deleting the provision thereof directing the sale of the marital residence; as so modified, thе judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Orangе County, for further proceedings in accordance herewith, and thereafter, the entry of an appropriatе amended judgment.
When determining a maintenance obligation, “[w]here a party‘s account of his or her finances is not believable, the court may impute a true or potential income higher than that alleged” (DiPalma v DiPalma, 112 AD3d 663, 664 [2013]; see Kessler v Kessler, 111 AD3d 895 [2013]). Here, the Supreme Court рrovidently exercised its discretion in imputing income to the defendant based on, inter alia, information he provided in a bankruptcy petition (see Duffy v Duffy, 84 AD3d 1151, 1152 [2011]; Greisman v Greisman, 98 AD3d 1079, 1080 [2012]).
” ‘[T]he amount and duration of maintenance is a matter committed to the sound discretion of thе trial court, and every case must be determined on its own unique facts’ ” (DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]). In view of the relevant factors, including the income of the parties, the length of the marriage, the present and future earning capacity of the parties, and the ability of the party seeking maintenance to become self-supporting, the Supreme Court providently exercised its discrеtion in awarding the plaintiff weekly maintenance in the sum of $550 for a period of three years (see
The Supreme Court awarded the defendant an equitable distribution credit in the sum of $180,000 for a contribution of alleged separate property he made toward the construction of the marital residence. To satisfy the credit, the court directed that $180,000 the parties loaned to his parents should be repaid only to him. However, while the defendant testified that he used his separatе funds to pay for materials used to construct the marital residence, he offered no additional evidentiary support for his claim (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019 [2009]; Romano v Romano, 40 AD3d 837, 838 [2007]; Murphy v Murphy, 4 AD3d 460, 461 [2004]). Since the defendant failed to meet his burden of establishing that the $180,000 was separate property, he was not entitled to a credit. Consequently, the $180,000 the parties loaned to the defendant‘s parents should be repaid to both parties.
The Supreme Court providently exercised its discretion in equally allocating responsibility for certain сredit card debt in the amount of $22,648 that the plaintiff incurred prior to this action, as the plaintiff demonstrated that it constituted mаrital debt (see Alleva v Alleva, 112 AD3d 567, 569 [2013]; Rodriguez v Rodriguez, 70 AD3d 799, 802 [2010]).
Contrary to the defendant‘s contention, the Supreme Court providently awarded the plaintiff $7,000 for one hаlf the value of, inter alia, the furnishings in the marital residence and certain other items.
Under the circumstances of this casе, the Supreme Court improvidently exercised its discretion in directing the sale of the marital residence without first offering the dеfendant the option of retaining exclusive occupancy of the marital residence by purchasing the plaintiff‘s interest therein (see Aebly v Lally, 112 AD3d 561, 563 [2013]; Ierardi v Ierardi, 151 AD2d 548, 548-549 [1989]; see also Bartek v Draper, 309 AD2d 825, 826 [2003]). In order to exercise the option to purchase the plaintiff‘s interest, the defendant shall, within threе months after service upon him of a copy of this decision and order with notice of entry, pay off
Mastro, J.P., Chambers, Austin and Miller, JJ., concur.