Pulver v. PulverPulver v. Pulver
James H. Pulver, Appellant, v Suzanne M. Pulver, Respondent. [837 NYS2d 369]—
Spain, J. Appeals from two orders of the Supreme Court (Doyle, J.), entered April 15, 2005 in Ulster County, ordering, inter alia, equitable distribution of the parties’ marital property, upon decisions оf the court.
Plaintiff and defendant were married in July 1992 and have three children (born in 1993, 1995 and 1997). Prior to their marriage, defendant and her siblings were given an interest in
Just prior to their marriage, defendant used separate funds toward the purchase—in her own name—of what became the marital residence in the Town of Saugerties, Ulster County. Defendant‘s parents loaned her $30,000 toward the downpayment and closing costs on the home. Although the mortgage remained in defendant‘s name, she subsequently deeded the residence to plaintiff, who transferred the property to the parties jointly. During the marriage, defendant spent $150,000 of her separate funds for improvements to the residence, and plaintiff made the mortgage payments until the commencement of this action.
In August 1995, defendant‘s family‘s businesses, where she was employed, were sold for $12.5 million and she placed her share of those funds, approximately $2.5 million, in a separate account. Meanwhile, plaintiff began to manage most of the investments in defendant‘s family‘s sizable portfolio and used $40,000 of marital assets to form his own company, Lockwood Financial Services.
Plaintiff commenced this divorce action in July 2002 and the parties ultimately agreed to dissolve the marriage on the ground of defendant‘s constructive аbandonment; a trial was subsequently held to determine how their assets would be distributed.1 After hearing proof with respect to the parties’ prenuptial agreement, Supreme Court, by decision and order, determined that it was valid and enforceable. Upon the completion of thе trial, the court issued a second decision and order which, among other things, ordered plaintiff to pay monthly child support of $2,175 and child support arrears, directed the parties to each pay half of the cost of the children‘s unreimbursed health care expenses аnd private schooling, determined that neither party was entitled to spousal maintenance, awarded defendant 70% of the marital residence after finding it to be marital property, and required plaintiff to pay defendant 50% of the value of his business. Plaintiff now appeals.
Initially, there is ample support in the record for Suprеme Court‘s determination that the parties’ prenuptial agreement was properly executed and enforceable. A duly executed prenuptial agreement will be considered valid and binding unless the contesting party can establish that he or she was induced by fraud, overreaching or duress attributable to the party seeking enforcement (see Matter of Greiff, 92 NY2d 341, 344 [1998]; Costanza v Costanza, 199 AD2d 988, 990 [1993]). Evidence demonstrating “concealment of facts, misrepresentation or some form of deception” is necessary to establish fraud (Matter of Phillips, 293 NY 483, 491 [1944]); however, “a failure to disclose does not, standing alone, constitute fraud or overreaching sufficient to vitiate” a prenuptial agreement (Panossian v Panossian, 172 AD2d 811, 813 [1991]).
Here, plaintiff first asserts that although both parties signed the agreement on the same day, they signed and acknowledged—before notaries—two separate documents, at different locations, and when they each signed their respective copy, the line for the other party‘s signature was blank. Indeed, the fact that the agreement was signed by the parties at separate locations does not render it invalid; “a binding agreement may be assembled from morе than one writing, even if all are not signed by the party against whom enforcement is sought” (Nolfi Masonry Corp. v Lasker-Goldman Corp., 160 AD2d 186, 187 [1990], citing Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 54-55 [1953]; see Raj Jewelers v Dialuck Corp., 300 AD2d 124, 126 [2002]). Here, although the agreements were signed at separate locations, they are identical and plaintiff conceded that he understood beforehand that even though neither of the dоcuments would be signed by both parties, their terms were binding on both parties.
Similarly unpersuasive is plaintiff‘s claim that the prenuptial agreement was unenforceable as defendant inadequately disclosed her financial standing prior to its execution. Notably, in the signed agreement, thе spaces provided for the amount of stock that defendant held in each of the family businesses were left blank. However, plaintiff testified that he was aware when signing the agreement that it did not set forth the number of defendant‘s shares in the family businesses but was not concerned by that omissiоn, and that defendant‘s financial status had made no difference to him before the marriage and that, even if she had disclosed her financial status, it would not have changed his decision to sign the agreement. Further, the record indicates that plaintiff—an experienced stockbrоker who had attended meetings of the companies’ executive committee
We also find support in the record for Supreme Court‘s calculation of plaintiff‘s child support obligation. The court determined plaintiff‘s income for child support purposes to be $90,000, applied the statutory percentage to this income and found plaintiff‘s monthly child support obligation to be $2,175. Plaintiff initially argues that Supreme Court did not follow the statutory requirement as it did not exclusively rely on his most recent tax return when calculating his parental income (see
Plaintiff next claims that Supreme Court failed to sufficiently articulate why it would not depart from the given statutory percentages when evaluating his income over $80,000 for child support purposes (see
schooling,
Plaintiff next argues that Supreme Court failed to determine the combined parental income before applying the child support percentage contrary to
We next reject plaintiff‘s assertion that Supreme Court should have considered, prior to assessing his income over $80,000, that he was left impoverished when defendant‘s family withdrew its invеstments from his control (see
We also reject plaintiff‘s assertion that Supreme Court erred in valuing his individual retirement accounts as of the date of trial. So as to avoid a windfall to the titled spouse and an injustice to the other, “where increases to a marital asset are passive, that is, affected by outside market influences rather than the actions of the titled sрouse, the asset should be valued as closely as possible to the date of trial” (Harrington v Harrington, 300 AD2d 861, 864 [2002]; see Soule v Soule, 252 AD2d 768, 771 [1998]; Heine v Heine, 176 AD2d 77, 87 [1992], lv denied 80 NY2d 753 [1992]). Here, plaintiff, on direct examination, testified that the market was a factor in the increase and conceded on cross-examination that the increase was “strictly a
As to the distribution of the marital residence as marital property, we find ample support in the record for Supreme Court‘s choice of expert opinions in setting the value of the marital residence at $350,000, the issues of the quality of the proof and credibility having been resolved in defendant‘s favor by the trier of fact (see Walasek v Walasek, 243 AD2d 851, 853 [1997]; Holihan v Holihan, 159 AD2d 685, 686 [1990]). We also reject plaintiff‘s argument that the court unfairly distributed the marital residence. It is well settled that a party is entitled to a credit for any contribution of separate property used in the purchase or improvement of the marital dwelling (see Stots v Daniels, 22 AD3d 413, 413-414 [2005]; Gonzalez v Gonzalez, 291 AD2d 373, 374 [2002]; Strang v Strang, 222 AD2d 975, 977 [1995]; Mink v Mink, 163 AD2d 748, 749 [1990]; Lord v Lord, 124 AD2d 930, 931 [1986]; Cunningham v Cunningham, 105 AD2d 997, 998-999 [1984]). Here, defendant purchased the residence in her own name with her separate funds for the downpayment and closing costs totaling $47,301, a sum which included a $30,000 loan to her from her parents which they later forgave аs a gift. Notably, despite the conflicting testimony regarding that gift, the loan clearly was made to defendant only and our review of the testimony supports the court‘s determination that it was subsequently gifted to her alone and not to both parties.
Moreover, we cannot say that Supreme Court abused its discretion in awarding plaintiff only 30% of the balance of the value of the residence, a decision based on defendant‘s expenditure of upwards of $150,000 of her separate funds to renovate and improve the marital residence. While defendant may havе been entitled to a full credit for these improvements (see Strang v Strang, supra at 977; Lord v Lord, supra at 931; Cunningham v Cunningham, supra at 998-999), the court, within its broad discretion, reasonably awarded defendant 70% (20% more than a 50/50 split) of the balance of the value of the residence.
There is also support in the record for awarding a credit to defеndant for a portion of the $74,564.56 that she paid from her own funds for the carrying charges—mortgage, taxes, maintenance—on the residence from July 2002, when plaintiff ceased making payments on the mortgage (see Cunningham v Cunningham, supra at 998-999). In light of the 70/30 split in distributing the marital residence, however, defendant‘s credit
We also find merit in plaintiff‘s contention that Supreme Court improperly directed him to pay defendant 50% of the $40,000 in marital property used to start his business, Lockwood Financial Services. In order to avoid “double counting,” seed money voluntarily contributed from marital funds to help one of the parties create a new business should not be reimbursed during distribution if the value of that business is equitably distributed (see Garvey v Garvey, 223 AD2d 968, 971 [1996]). Thus, as defendant received a 50% share of plaintiff‘s business in equitable distribution, the court erred in dirеcting plaintiff to repay defendant $20,000, i.e., half of the $40,000 of marital property used to start his business.
We have considered plaintiff‘s remaining contentions, including Supreme Court‘s denial of maintenance, and find them to be without merit.
Cardona, P.J., Mugglin and Rose, JJ., concur. Ordered that the orders are modified, on the law and the facts, without costs, by reversing so much thereof as (1) credited defendant with 50% of the $74,564.56 she expended with respect to the marital residence during the pendency of the action, and (2) directed plaintiff to pay defendant $20,000 in marital assets used to start plaintiff‘s business; defendant is entitled to only a 30% credit for the moneys she expended with respect to the marital residence; and, as so modified, affirmed.