Phillips v. HaralickPhillips v. Haralick
Ordered that the judgment is modified, on the law and the facts, (1) by deleting the provision thereof determining that the Bank of New York accounts xxxx3421 and xxxx7495, and
The defendant former husband correctly concedes that the Supreme Court erred in determining that the subject two Bank of New York accounts and three Greenpoint Savings Bank accounts were his separate property, and that, in fact, the accounts are marital property. The defendant also correctly concedes that he had omitted a contribution in the sum of $2,000 to his RBC Dain Rauscher IRA made in 1998, and that $6,000 invested in his RBC Dain Rauscher (Non-IRA) account constitutes marital property.
The plaintiff failed to prove that she contributed funds for the purpose of partial payment of a home equity loan on the Seattle, Washington, residence in which the parties formerly lived. As “[t]he transfer of title to a marital residence between spouses during the marriage is not determinative of whether the property is separate or marital” (La Rochelle v La Rochelle, 44 AD3d 1011 [2007]), the fact that the defendant executed a quitclaim deed conveying his interest in the Seattle home to the plaintiff did not constitute a transfer of 50% of the equity in the Seattle home to the plaintiff, absent proof of consideration. Moreover, the Supreme Court providently exercised its discretion in equitably distributing 55% of the net proceeds from the sale of the marital home in Hewlett, New York, to the defendant, and 45% to the plaintiff (see Loria v Loria, 46 AD3d 768, 769-770 [2007]; Saleh v Saleh, 40 AD3d 617, 617-618 [2007]; Corless v Corless, 18 AD3d 493, 494 [2005]).
The defendant overcame the presumption that separate funds commingled with marital funds constitute marital property with respect to the Fidelity Asset Manager Account, $10,000 invested in Scudder, and $12,000 invested in the RBC Dain Rauscher (Non-IRA) account, by presenting sufficient evidence that the source of the funds was separate property. However, the plaintiff failed to overcome the presumption with respect to her Washington Mutual checking account (see Hartog v Hartog, 85 NY2d at 49; Massimi v Massimi, 35 AD3d at 402; Sherman v Sherman, 304 AD2d 744 [2003]; Diaco v Diaco, 278 AD2d at 359; cf. Wade v Steinfeld, 15 AD3d 390, 391 [2005]).
The Supreme Court providently exercised its discretion in awarding the plaintiff temporary maintenance (see Signorelli v Signorelli, 50 AD3d 772, 773 [2008]; Dooley v Dooley, 128 AD2d 669, 670 [1987]). However, the Supreme Court incorrectly directed that the plaintiff‘s share of escrow funds was to be reduced by the sum of $17,415, representing 45% of the $38,700 which had been released from escrow to the plaintiff for maintenance arrears owed by the defendant to the plaintiff. Rather, the Supreme Court should have directed that the sum of $17,415 be added to the plaintiff‘s share to properly compensate her for the full amount of the maintenance arrears released from the escrow funds before calculating each party‘s respective share of the escrow balance.
It is undisputed that the Supreme Court failed to include a decretal paragraph in the judgment directing the plaintiff to prepare a qualified domestic relations order with respect to the amounts she is entitled to from the defendant‘s Fidelity Retirement Account and the defendant‘s TIAA/CREF pension account. Accordingly, we add such a provision to the judgment.
The plaintiff‘s contention that she is entitled to a credit for books taken from the marital home by the defendant is without merit, as she failed to present, at the trial, evidence of the value of said books (see Dudla v Dudla, 50 AD3d 1255, 1257 [2008]).
The parties’ remaining contentions are either unpreserved for appellate review, improperly raised for the first time on appeal, or without merit. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.