Heine v. Heine

176 A.D.2d 77, 580 N.Y.S.2d 231, 1992 N.Y. App. Div. LEXIS 1489
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 11, 1992
StatusPublished
Cited by52 cases

This text of 176 A.D.2d 77 (Heine v. Heine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heine v. Heine, 176 A.D.2d 77, 580 N.Y.S.2d 231, 1992 N.Y. App. Div. LEXIS 1489 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

Married on October 28, 1968, she for the first time, he for the second, when they were 27 and 38 years of age, respectively, and he was a partner in a medium-sized New York City law firm and she a teacher at Hunter College pursuing a doctorate in sociology at Columbia University, the parties separated in November 1985, when the husband left the marital home. At the time of the marriage, the husband had three children, ranging in age from nine to twelve, from his prior marriage. There is one child of the marriage, a son, born on October 19, 1972. One month after separating, the husband commenced the instant divorce action.

In May 1969, one-half year after the marriage, the parties purchased, at a cost of $267,500, financed by two mortgages totaling $213,000 and a down payment of $54,500, a five-story townhouse located at 441 East 57th Street in Manhattan, title to which was taken solely in the husband’s name so that, as he explained at the time, he would be better able to borrow against it. At the time of purchase, the townhouse consisted of three apartments, one on the first floor, and two duplexes, one, on the fourth and fifth floors, in disrepair and badly in need of renovation. The fourth and fifth floor renovations, which the wife arranged and supervised, included replacing the windows and all electrical appliances, sanding, scraping and refinishing the wooden floors and painting the walls. In October 1969, almost six months after the purchase of the townhouse, the renovations of the upper duplex were completed and the parties took occupancy.

In 1970, when the second and third floor duplex became vacant, it too was renovated, again under the wife’s supervi[81]*81sion. A new stairway between the second and third floors, as well as a new kitchen, was installed, a new front room added and the dining room, kitchen and bathrooms refurbished. Once the work was completed, the parties moved into the second and third floor duplex. Two years later, in 1972, when the first floor became vacant, the parties decided to create a triplex. The renovation, which included gutting the entire first floor, extending it 10 feet and installing an interior stairwell connecting all three floors, was again overseen by the wife, who, in addition, since at least one or more of the townhouse apartments was always rented, acted as the on-site landlord and caretaker.

It was the wife, who, throughout the marriage, undertook the major responsibility for taking care of the family’s domestic and social needs. While the husband pursued his career, the wife took care of their son and his developmental needs. She brought him to his doctor’s appointments and nursed him when he was ill; she shopped for his clothing, selected his schools and attended his various functions thereat. The wife also maintained a close relationship with the husband’s children from his first marriage. She telephoned them daily, spent almost every weekend with them, arranged birthday parties and family vacations for them and was always available to counsel them in their personal or school problems.

The wife assisted the husband in entertaining his law clients; she had dinner or cocktail parties at the townhouse on an almost weekly basis. In addition, approximately four times a year she arranged larger gatherings, including an annual Christmas party, for as many as 90 guests. She was solely responsible for planning these events.

After the marriage, the husband joined a much larger New York City law firm as a named partner. His earnings increased substantially throughout the marriage and the parties enjoyed an extremely lavish lifestyle. In addition to the townhouse, which, as stipulated, has a value of $2,500,000, they acquired a 73-acre estate in North Salem, New York, valued at $1,800,000, as well as various other investment and security interests. At the time of trial, in late 1988, the husband was both chief executive officer, earning approximately $300,000 per year, of a large corporate concern and counsel to yet another law firm, earning approximately $150,000 per year, for a total annual income of $450,000.

The wife, on the other hand, left her teaching position at [82]*82Hunter College one year after the marriage and joined the faculty at Columbia Presbyterian Hospital Behavioral Science Department, teaching a seminar one day a week. She remained on the Columbia Presbyterian faculty for approximately seven years. As a result of her family responsibilities, however, the wife was unable to continue her doctoral studies at Columbia full time and had to withdraw, transferring to a less demanding program and receiving her PhD in 1981. At the time of trial, the wife was teaching a course, which she had also taught in the fall 1987 semester, at New York University Graduate School of Art Administration. She had, at that time, $60,000 in liquid assets, an undivided one-half interest in the North Salem property, a one-eighth interest in an investment known as Thurcon Development Company and a horse; the remaining marital assets were in the husband’s name.

After 11 days of trial on the issues of child custody, support, maintenance and equitable distribution, the husband withdrew his complaint and reply to the wife’s counterclaim for divorce, and the wife was granted a divorce on the ground of cruel and inhuman treatment. A judgment thereon was entered on April 25, 1989. Thereafter, on August 1, 1989, a supplemental judgment of divorce was entered with respect to the ancillary issues. The wife was awarded a distributive award of $2,587,372, representing one half of the net marital estate less $62,700 in her name. The judgment provided that $750,000 was to be paid upon entry thereof with the remainder, at 9% interest, payable from the proceeds of the sale of the townhouse, which was to be sold on or before July 1, 1990, with the interest on the unpaid sum payable each and every month on the first day thereof, commencing with the date of entry of the judgment. In addition, the husband was to receive a credit for one half of the capital gains tax actually paid during the year of sale and for any sums paid for maintenance of the premises after January 1,1990.

The wife moved to resettle the supplemental judgment of divorce, arguing that the court, having determined the wife’s interest in the townhouse to be 38.5%, erred in permitting the husband to reduce the amount he was to pay the wife by 50% of the capital gains tax paid during the year of sale. The wife alternatively argued that the husband should be directed to transfer title to 38.5% of the townhouse to her and both parties required to pay the capital gains tax incurred upon the sale of the property. The court granted the wife’s motion [83]*83in part, limiting the husband’s credit for capital gains tax paid during the year of the sale to 38.5% of the lesser of $2.5 million, i.e., the townhouse’s agreed-upon value, or the actual selling price. Additionally, the court gave the wife the option of having the husband transfer to her a 38.5% interest in the townhouse, upon the sale of which she would receive 38.5% of up to $2.5 million of the net proceeds, without any deduction for the payment of capital gains tax. The wife appeals and the husband cross-appeals from the resettled supplemental judgment.

A major issue on appeal, as it was at trial, is the extent to which the townhouse constituted marital or separate property.

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Cite This Page — Counsel Stack

Bluebook (online)
176 A.D.2d 77, 580 N.Y.S.2d 231, 1992 N.Y. App. Div. LEXIS 1489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heine-v-heine-nyappdiv-1992.