Bergam v. Dinerman

Opinion

Bergam v Dinerman

2026 NY Slip Op 04920

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Mary Bergam, respondent,

v

Barry Dinerman, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-03048, (Index No. 52375/13)

Lara J. Genovesi, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Arnold E. DiJoseph, P.C., Staten Island, NY (Arnold E. DiJoseph III of counsel), for appellant.

Joseph Giaramita, Jr., Brooklyn, NY, for respondent.

[*1]

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Kings County (Cheryl J. Gonzales, J.), dated March 20, 2024. The judgment of divorce, upon a decision of the same court (Delores J. Thomas, J.) dated March 20, 2023, made after a nonjury trial, inter alia, (1) directed the defendant to pay child support arrears in the sum of $142,497.36, (2) deemed a certain investment account marital property subject to equitable distribution, to be divided equally between the parties, (3) directed the defendant to pay the plaintiff $97,000 of the parties' marital credit card debt, and (4) declined to award the defendant a credit for certain utility payments and repairs made for the marital residence.

ORDERED that the appeal from so much of the judgment of divorce as declined to award the defendant a credit for certain utility payments and repairs made for the marital residence is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof directing the defendant to pay child support arrears in the sum of $142,497.36, and substituting therefor a provision directing the defendant to pay child support arrears in the sum of $84,350.89; as so modified, the judgment of divorce is affirmed insofar as reviewed, without costs or disbursements.

The parties were married on July 2, 1988, and have three children who are now all emancipated. On May 30, 2013, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial occurring over nonconsecutive dates in 2016 and 2017, the Supreme Court issued a decision dated March 20, 2023, and a judgment of divorce dated March 20, 2024, was entered. The judgment of divorce, inter alia, directed the defendant to pay child support arrears in the sum of $142,497.36, deemed a certain investment account marital property subject to equitable distribution, to be divided equally between the parties, directed the defendant to pay the plaintiff $97,000 of the parties' marital credit card debt, and declined to award the defendant a credit for certain utility payments and repairs made for the marital residence.

"The proceeds from an inheritance are separate property" (Sinnott v Sinnott, 194 AD3d 868, 871; see Domestic Relations Law § 236[B][1][d][1]; Renck v Renck, 131 AD3d 1146, 1148). However, "'[w]here separate property has been commingled with marital property, for [*2]example in a joint bank account, there is a presumption that the commingled funds constitute marital property'" (Torkin v Susac, 236 AD3d 1082, 1086, quoting Glessing v Glessing, 212 AD3d 783, 784; see Candea v Candea, 173 AD3d 663, 666). "To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and [was commingled] only as a matter of convenience, without the intention of creating a beneficial interest" (Wen Wen Sun v Ti Zhou, 243 AD3d 735, 738 [internal quotation marks omitted]; see Kirshner v Kirshner, 228 AD3d 923, 926).

Here, the Supreme Court properly determined that the defendant failed to overcome the presumption that a Scottrade account ending in 2253, where he deposited property he inherited, was marital property subject to equitable distribution. As the defendant failed to overcome the presumption that the account was marital property, the court properly determined that the account was marital property subject to equitable distribution and providently exercised its discretion in directing that it be divided equally between the parties (see Weiss v Nelson, 196 AD3d 722, 725). Similarly, the defendant failed to demonstrate that he detrimentally relied on the plaintiff's alleged agreement that the inherited property was separate property (see Schwartz v Miltz, 77 AD3d 723, 725).

"While '[e]xpenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt,' '[e]xpenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses'" (Bari v Bari, 200 AD3d 835, 839, quoting Epstein v Messner, 73 AD3d 843, 845). "However, the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action, and liability for the payment of marital debts need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law § 236(B)(5)(d)" (id. [internal quotation marks omitted]; see Minervini v Minervini, 152 AD3d 666, 668; Lewis v Lewis, 6 AD3d 837, 839-840). "Where, as here, the determination as to equitable distribution has been made after a nonjury trial, the evaluation of the credibility of the witnesses and the proffered items of evidence is committed to the sound discretion of the trial court, and its assessment of the credibility of witnesses and evidence is afforded great weight on appeal" (Morales v Carvajal, 153 AD3d 514, 515; see Turco v Turco, 117 AD3d 719, 722; Franco v Franco, 97 AD3d 785, 786; Schwartz v Schwartz, 67 AD3d 989, 990). Here, the Supreme Court providently exercised its discretion in finding the defendant responsible for 50% of the plaintiff's credit card debt used for expenses for the children.

"'The Child Support Standards Act [(CSSA)] [Domestic Relations Law § 240(1-b)] sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling' known as the statutory cap" (Munsterman v Munsterman, 227 AD3d 1004, 1006, quoting Matter of Butta v Realbuto, 214 AD3d 973, 974; see Domestic Relations Law § 240[1-b]). "Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both" (Munsterman v Munsterman, 227 AD3d at 1006 [internal quotation marks omitted]). "However, the court 'must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap'" (id., quoting Matter of Butta v Realbuto, 214 AD3d at 975).

Here, the Supreme Court calculated the parties' incomes pursuant to the CSSA and awarded child support based on the parties' total income, which exceeded the statutory cap. However, the court failed to provide any rationale for including income in excess of the statutory cap, such that it did not set forth a sufficient basis for its determination to calculate child support based on combined parental income exceeding the statutory cap (see Matter of Butta v Realbuto, 214 AD3d at 975; cf. Varnit v Varnit, 233 AD3d 917, 922). In any event, on the record before us, we see no basis to calculate child support arrears based upon income exceeding the statutory cap. Therefore, utilizing a statutory income cap of $143,000, which was the income cap during the trial in this [*3]matter, and using the parties' adjusted CSSA incomes of $106,805 for the plaintiff and $134,771 for the defendant, we determine that the amount owed by the defendant in child support arrears pursuant to the CSSA is $84,350.89 based on 22 months of child support with two unemancipated children and 42 months of child support with one unemancipated child. Accordingly, in the interest of efficiency and judicial economy (see Matter of Glick v Ruland, 185 AD3d 926, 929; Matter of Peddycoart v MacKay, 145 AD3d 1081, 1085), rather than remitting the matter to the Supreme Court, Kings County, we modify the judgment of divorce to direct the defendant to pay child support arrears in the sum of $84,350.89 instead of the initial award of $142,497.36.

Finally, the appendix on appeal is insufficient to determine whether the Supreme Court properly declined to award the defendant a credit for certain utility payments and repairs made for the marital residence, as relevant motion practice was not included in the appendix. "'An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'" (Daniels v Donohue, 137 AD3d 1072, 1072, quoting Matter of Passalacqua, 31 AD3d 648, 648; see CPLR 5528[a][5]). "Where, as here, omissions from the appendix inhibit the court's ability to render an informed decision on the merits of the appeal, dismissal of that portion of the appeal is the appropriate disposition" (Kumar v Chander, 149 AD3d 709, 712 [citations and internal quotation marks omitted]). Thus, the defendant's appeal from so much of the judgment of divorce as declined to award him a credit for certain utility payments and repairs made for the marital residence must be dismissed.

The plaintiff's remaining contention is without merit.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court