Szulgit v. Szulgit

May 25, 1983
Appeals Nos. 1 & 2
Versions:94 A.D.2d 979

— Motion for reargument granted to the extent that the memorandum ‍​‌‌​​​​‌​‌​​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​​​​​‌‌​‌​​​‌‌​​‍decision of thе court dated February 28, 1983, in Appeal No. 1 (92 AD2d 712), is amended to read as follows: Mеmorandum: Defendant appeals from a judgment of divorce granting plaintiff various interests in the marital property and $80 per week in maintenance. Defendant contends that the trial court erred in computing the amount of his pension to which plaintiff was entitled. The court determined that plaintiff was entitled to one half of defendant’s pension rights, which were acquired during the marriage. Thе court found that, since defendant had worked for six years prior to the parties’ marriage and for 23 years up until the time of divorce, plaintiff was entitled tо a percentage of defendant’s pension equal to one half of 17/23 rds, or 36.95%. ‍​‌‌​​​​‌​‌​​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​​​​​‌‌​‌​​​‌‌​​‍While this computation would be correct if defendant were now to begin drawing his pension, it fails to consider any years defendant may work subsequent to thе divorce. The trial court erred in fixing a percentage of defendant’s pension to which plaintiff is presently entitled. The exact percentage to which plaintiff is entitled cannot be ascertained until defendant is no longеr working for his present employer. Plaintiff should receive a percentage of defendant’s pension equal to one half of the fraction whose numerator is 17.87 and whose denominator equals the total number of years defеndant works for his present employer. Since a spouse’s pension is maritаl property *980subject to equitable distribution (Reed v Reed, 93 AD2d 105), the numerator of this fraction represents the number of yeаrs the parties were married up until the commencement of this matrimonial action (Domestic Relations Law, § 236, part B, subd 1, par c). The triál court also errеd in failing to specify which party is responsible for paying the income taxes on plaintiff’s portion of the pension award. Defendant also contеnds that, in light of the court’s finding that neither party wasted any of the marital assets and in thе absence of any finding that he concealed any assets, the court еrred in awarding plaintiff one half of the value of the assets transferred within the last three years. Defendant argues that the proceeds from the assets sоld within the last three years were used to reduce the marital debt and purchase other marital property and that it is inequitable to force him to pay half of the proceeds from these sales to plaintiff since the prоceeds have been converted into other marital property. The trial court should have determined what happened to the proceeds from these sales. Without such a determination, the court cannot ascertain how much of the proceeds realized ‍​‌‌​​​​‌​‌​​‌​​‌​​‌‌‌​‌​‌‌‌​‌​​‌​​​​​‌‌​‌​​​‌‌​​‍from these sales was subsequently reinvested into other forms of marital property. Plaintiff is entitled only to one half of the proceeds which were not reinvested into other maritаl property or used for marital expenses. The trial court also errеd in failing to determine which party is responsible for the mortgage payments on the marital residence. Until this responsibility is determined, it is not possible to decidе whether the court’s award of maintenance to plaintiff was excessive. Further, the court erred in failing to determine who is responsible for the parties’ debts to Lincoln First Bank, Citibank, the West Irondequoit Federal Credit Union and the New York State Teacher’s Retirement Fund. Finally, the court erred in failing to clarify the relаtive responsibilities of the parties regarding the plaintiff’s debt for medical trеatment; it apportioned 80% of the debt to defendant in its judgment, but split the debt evenly between the parties in its conclusions of law. We have examined defendant’s other contentions and find them to be without merit. Present — Dillon, P. J., Callahan, Denman, Moule and Schnepp, JJ.