Demjanenko v. Demjanenko

79 A.D.3d 1754, 913 N.Y.S.2d 844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2010
• Status: Published

Opinions

Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered October 19, 2009. The order, insofar as appealed from, denied the motion of defendant to compel plaintiff to pay her $243,196.50.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Supreme Court properly denied that part of defendant’s motion seeking an order directing plaintiff to transfer to defendant the sum of $243,196.50 from his individual retirement accounts (IRAs) pursuant to the parties’ separation agreement (agreement), as incorporated but not merged into the judgment of divorce. The agreement expressly provided that the value of the parties’ IRAs would be “equalized” as part of the equitable distribution of marital property. Thus, the court properly concluded that the parties intended that they would share equally in the appreciation or depreciation of their IRAs that occurred between the date of the agreement, when the value of the IRAs was initially determined, and the date of distribution (see generally McCarthy v McCarthy, 298 AD2d 977 [2002]).

All concur except Martoche, J.E, who dissents and votes to reverse in accordance with the following memorandum.