O'Connell v. O'Connell

290 A.D.2d 774, 736 N.Y.S.2d 728, 2002 N.Y. App. Div. LEXIS 437
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 17, 2002
StatusPublished
Cited by9 cases

This text of 290 A.D.2d 774 (O'Connell v. O'Connell) 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
O'Connell v. O'Connell, 290 A.D.2d 774, 736 N.Y.S.2d 728, 2002 N.Y. App. Div. LEXIS 437 (N.Y. Ct. App. 2002).

Opinion

Spain, J.

Appeal from a judgment of the Supreme Court (Ferradino, J.), ordering, inter alia, equitable distribution of the parties’ marital property, entered September 11, 2000 in Albany County, upon a decision of the court.

Plaintiff and defendant were married in 1959 and have eight children, all of whom are emancipated. In 1982, the parties separated and plaintiff commenced an action for divorce alleging cruel and inhuman treatment. Following a trial, Supreme Court (Williams, J.) dismissed the action — on defendant’s motion — for failure of proof and this Court affirmed (O’Connell v O’Connell, 116 AD2d 823). On December 21, 1994, plaintiff successfully obtained a judgment of divorce in Vermont which made no provision for the distribution of the parties’ property.

On March 14, 1995, plaintiff commenced this action pursuant to Domestic Relations Law § 236 (B) (5) seeking distribution of marital assets subsequent to a foreign divorce. Following the denial of defendant’s motion to dismiss on the ground that the action was barred by principles of res judicata and collateral estoppel—which was affirmed on appeal (O’Connell v O’Connell, 226 AD2d 950, lv dismissed 88 NY2d 963)—and after a nonjury trial, Supreme Court rendered a judgment essentially distributing the marital property equally and directing defendant to pay counsel fees. Defendant appeals.

We first address defendant’s contention that Supreme Court erred in utilizing the date of commencement of the instant equitable distribution action as the “cutoff’ date for the purpose of classifying assets as marital or separate property. Marital property is defined as “all property acquired by either or both spouses during the marriage and before the * * * commence[775]*775ment of a matrimonial action” (Domestic Relations Law § 236 [B] [1] [c]) and, thus, the selection of an appropriate cutoff date depends on the meaning ascribed to the statutory term “matrimonial action” (see, Anglin v Anglin, 80 NY2d 553, 558; Marcus v Marcus, 135 AD2d 216, 220-221, amended 137 AD2d 131). Defendant argues that plaintiff’s unsuccessful 1982 action for divorce — which, notably, he opposed — signified the end of the parties’ economic partnership and, thus, the date of commencement of that action should be used as the cutoff date for the acquisition of marital property. We disagree.

In our view, the term “matrimonial action” in Domestic Relations Law § 236 (B) (1) (c) does not include an action which, by virtue of a dismissal or discontinuance, neither terminates the marriage nor results in the equitable distribution of the parties’ property (cf., Anglin v Anglin, supra [holding that the commencement of an action for separation is insufficient to cease the accrual of marital property]). Thus, Supreme Court correctly utilized the date of the commencement of the within action for equitable distribution (see, Domestic Relations Law § 236 [B] [1] [c]) as the appropriate cutoff date (see, Matter of Ward v Ward, 94 AD2d 908, 909; McMahon v McMahon, 187 Misc 2d 364, 366-367).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'CONNELL v. Corcoran
802 N.E.2d 1071 (New York Court of Appeals, 2003)
Schultz v. Schultz
309 A.D.2d 1020 (Appellate Division of the Supreme Court of New York, 2003)
Solomon v. Solomon
307 A.D.2d 558 (Appellate Division of the Supreme Court of New York, 2003)
Redgrave v. Redgrave
304 A.D.2d 1062 (Appellate Division of the Supreme Court of New York, 2003)
Harrington v. Harrington
300 A.D.2d 861 (Appellate Division of the Supreme Court of New York, 2002)
Cozza v. Colangelo
298 A.D.2d 914 (Appellate Division of the Supreme Court of New York, 2002)
McAteer v. McAteer
294 A.D.2d 783 (Appellate Division of the Supreme Court of New York, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
290 A.D.2d 774, 736 N.Y.S.2d 728, 2002 N.Y. App. Div. LEXIS 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-oconnell-nyappdiv-2002.