McDermott v. McDermott

88 A.D.2d 905, 450 N.Y.S.2d 584, 1982 N.Y. App. Div. LEXIS 17236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1982
• Status: Published

Opinion

— In a matrimonial action, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Jones, J.), dated February 23, 1981, which, inter alia, granted the plaintiff a divorce on the ground of cruel and inhuman treatment, dismissed the defendant’s counterclaims for the imposition of constructive trusts on the proceeds from the sale of the marital residence and on the sums originally held in certain credit union accounts, awarded the defendant $180 per week in child support and denied the defendant counsel fees. Judgment modified by deleting the fourth decretal paragraph thereof, and reinstating the defendant’s fourth counterclaim. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to Special Term for further proceedings consistent herewith. The defendant wife unsuccessfully sought to impose a constructive trust on half of the contents of joint credit union accounts which had been closed by the plaintiff husband. We do not agree with the trial court’s resolution of this claim. The husband admitted that a portion of the funds came from the sale of a jointly held asset. While claiming that the remainder of the funds was accumulated solely through his earnings, he admitted that the wife’s salary was used for joint household expenses. The wife testified that her husband had promised that the savings would be hers too. We find that the elements of a constructive trust were proved by the wife and we remit the matter to Special Term so that her share of the funds appropriated by the husband can be determined. Damiani, J. P., Mangano, Gulotta and Niehoff, JJ., concur.