Goldman v. Goldman

131 A.D.3d 1107, 17 N.Y.S.3d 166

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 2015
• Docket: 2013-04809
• Status: Published

Opinion

Appeals from (1) an order of the Supreme Court, Suffolk County (William J. Kent, J.), dated April 27, 2009, and (2) a judgment of that court entered March 1, 2013. The order, inter alia, awarded certain pendente lite relief. The judgment, insofar as appealed from, failed to award the defendant a separate property credit with regard to the marital residence, equitably distributed the proceeds from the sale of property situated at 24 North Road in Northport and the funds held in a TD Ameritrade account on a 50/50 basis, and failed to award the parties credits for the amounts they each expended after the commencement of the action on carrying charges related to the marital residence.

Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,

Ordered that the judgment is modified, on the facts and in the exercise of discretion, by adding thereto a provision awarding each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts they each expended after the commencement of the action on carrying charges related to the marital residence; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amounts that each party expended after the commencement of the action on carrying charges related to the marital residence, and for the entry of an appropriate amended judgment thereafter.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The Supreme Court properly denied the defendant’s application for a separate property credit with regard to the marital residence. Contrary to the defendant’s contention, he failed to establish that the funds used to pay for the construction of the marital residence came from his separate property (see Golden v Golden, 98 AD3d 647, 649 [2012]; Scher v Scher, 91 AD3d 842, 846 [2012]; Massimi v Massimi, 35 AD3d 400, 402 [2006]; Lynch v King, 284 AD2d 309 [2001]).

Contrary to the defendant’s contention, the Supreme Court properly determined that the funds held in a TD Ameritrade account should be distributed equally. Generally, compensation for personal injury is separate property (see Domestic Relations Law § 236 [B] [1] [d] [2]). However, separate property that is commingled with marital property loses its separate character (see Golden v Golden, 98 AD3d at 649-650; Geisel v Geisel, 241 AD2d 442, 443 [1997]). Here, while the account at its inception held the defendant’s separate property in the form of a check for disability benefits in the amount of $400,000, over the years, that property was commingled with marital assets in the account and, therefore, lost its separate character.

“[Generally, it is the responsibility of both parties to maintain the marital residence . . . during the pendency of a matrimonial action” (Hymowitz v Hymowitz, 119 AD3d 736, 741 [2014] [internal quotation marks omitted]). “Where ... a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required” (Le v Le, 82 AD3d 845, 846 [2011]; see Judge v Judge, 48 AD3d 424, 425-426 [2008]). Here, while both parties paid certain carrying charges related to the marital residence after the commencement of the action, the defendant paid the vast majority of these expenses. Since these expenses should have been allocated on a 50/50 basis, we modify the judgment by adding a provision thereto awarding each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts that they each expended after the commencement of this action on such carrying charges, and remit the matter to the Supreme Court, Suffolk County, for a determination of the amounts that each party expended after the commencement of this action on such carrying charges, and for the entry of an appropriate amended judgment thereafter (see Hymowitz v Hymowitz, 119 AD3d at 742; Le v Le, 82 AD3d at 845-846; Judge v Judge, 48 AD3d at 425-426).

The defendant’s remaining contentions are without merit.

Dillon, J.R, Dickerson, Hall and LaSalle, JJ., concur.