Whitaker v. Case

122 A.D.3d 1015, 996 N.Y.S.2d 752

This text of 122 A.D.3d 1015 (Whitaker v. Case) 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
Whitaker v. Case, 122 A.D.3d 1015, 996 N.Y.S.2d 752 (N.Y. Ct. App. 2014).

Opinions

Lynch, J.

Cross appeals from a judgment of the Supreme Court (Powers, J.), entered September 17, 2013 in Schenectady County, ordering, among other things, equitable distribution of the parties’ marital property, upon a decision of the court.

The parties were married in September 1994 and have a daughter (born in 1995) and a son (born in 1998). Shortly after defendant (hereinafter the wife) left the marital residence in April 2008, plaintiff (hereinafter the husband) commenced this divorce action. In the ensuing litigation, Supreme Court initially awarded the parties joint legal custody of the children, with the husband maintaining primary physical custody. The court also ordered the children and the wife to engage in therapeutic counseling, directing both parties to cooperate in the process. Following an extended bench trial that commenced in August 2010 and concluded in April 2011, Supreme Court issued an or[1016]*1016der in September 2012 which, as pertinent here, granted the parties a divorce on mutual grounds of cruel and inhuman treatment, classified and ordered the equitable distribution of the parties’ marital property, granted the husband sole legal and physical custody of the children without any award of visitation to the wife, retroactively suspended the wife’s obligation to pay child support, directed that certain child support payments be returned to the wife, and directed the husband to pay the wife limited costs. A judgment of divorce was entered in September 2013 and both parties have appealed.1

The wife maintains that Supreme Court erred in awarding the husband two bank accounts he opened jointly, one with his daughter and the other with his son, both in the principal sum of $100,000. “[Wjhile the method of equitable distribution of marital property is properly a matter within the trial court’s discretion, the initial determination of whether a particular asset is marital or separate property is a question of law” (DeJesus v DeJesus, 90 NY2d 643, 647 [1997]; see Owens v Owens, 107 AD3d 1171, 1173 [2013]; Armstrong v Armstrong, 72 AD3d 1409, 1415 [2010]). Supreme Court determined that the husband funded each account, at least in part, with $187,000 in funds received and/or inherited from his aunt. The bank records, however, do not sustain the court’s findings as to the daughter’s account. The parties’ joint SEFCU checking account statements show that $100,000 was withdrawn on December 21, 2005 by transfer number 1930. Notably, the husband acknowledged this account was used as the parties’ primary checking account. That same day, $100,000 was deposited into a certificate of deposit in the name of the husband and his daughter by transfer number 1930. This match verifies that marital funds were utilized to fund the joint father/daughter account. Accordingly, we find that the wife’s distributive share should be increased by $50,000.2

As for the joint account that the husband opened with his son, the SEFCU statements show that, on December 21, 2005, the husband withdrew $100,000 from an account titled in his name “as settlor” by transfer number 1550. That same day, by [1017]*1017transfer number 1550, $100,000 was placed in a certificate of deposit in the husband’s name, jointly with his son. This match identifies the settlor account as the source of funds for the joint account. Separate property includes funds received by gift or inheritance (see Domestic Relations Law § 236 [B] [1] [d] [1]). The husband testified that he funded the settlor account entirely with cash received and inherited from his aunt, which he initially stored in a security box at home. Notably, the wife does not dispute the fact that the husband placed funds received from his aunt in a security box, but maintains that since she had a key, the funds were transformed into marital property. This contention is not convincing. On the record presented, we decline to disturb Supreme Court’s classification of this joint account as the husband’s separate property.3 The record also supports Supreme Court’s classification of various savings bonds as the husband’s separate property, purchased with funds received from his aunt.

Next, the wife contends that Supreme Court erred in classifying as marital property a $100,000 payment that she received in 2003 after settling an employment discrimination claim. Compensation received for personal injuries constitutes separate property for purposes of equitable distribution (see Domestic Relations Law § 236 [B] [1] [d] [21). By its terms, the settlement agreement resolved the wife’s claim of employment discrimination without an admission of liability, specified that no damages were being paid for any prior or future wage loss claim and provided for the payment of her counsel fees. All things being equal, this fund would constitute the wife’s separate property. The record shows, however, that after initially depositing the proceeds into an individual account on July 30, 2003, the wife created a joint account with the husband on August 18, 2003. Thereafter, the husband withdrew the accrued interest on the account. Although the wife testified that the husband threatened to harm her unless she added his name to the account, Supreme Court discredited this explanation and found that she transmuted the funds into marital property through the joint account. We defer to the court’s credibility assessment. The transfer of separate property, as here, into a joint bank account raises a presumption that the funds are marital (see Schwalb v Schwalb, 50 AD3d 1206, 1209 [2008]; Judson v Judson, 255 AD2d 656, 657 [1998]).

The analysis, however, must proceed further given the separate property source and the use of this account. With limited [1018]*1018exception, the principal in the account remained intact until 2008 when, with Supreme Court’s approval, the wife utilized the $100,000 balance to construct a home on a 6.4-acre lot on Pryne Road in the Town of Glen, Montgomery County. Up to that point, the husband routinely withdrew the accrued interest to maintain the $100,000 balance. As an exception, the SEFCU account statements support the wife’s contention that the Pryne Road lot was purchased in 2004 with $13,000 in funds taken from the account. An adjacent lot was also purchased, which remains vacant. The wife explained that she utilized her workers’ compensation disability payments, which arose out of a 1996 automobile accident, to replenish the balance back to $100,000. On this record, it is evident that the account was funded entirely with the wife’s separate property.

Since the two lots were purchased during the marriage, they are presumed to be marital property (see Domestic Relations Law § 236 [B] [1] [c]; Halse v Raise, 93 AD3d 1003, 1005 n 1 [2012]). Supreme Court did not abuse its discretion in rejecting the parties’ respective claims that separate property was utilized to purchase the vacant lot. We find that the court properly treated the entire property as marital property, but erred in not recognizing a credit in the wife’s favor. Notwithstanding the fact that the settlement funds were placed in a joint account, those funds were not commingled with other marital assets. To the extent that principal withdrawals were made, the wife replenished the principal balance with her own separate property. Given this content, we find that the wife should have received a $100,000 credit for the purchase of the Pryne Road lot and the construction of the home (see Chernoff v Chernoff, 31 AD3d 900, 903 [2006];

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Bluebook (online)
122 A.D.3d 1015, 996 N.Y.S.2d 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitaker-v-case-nyappdiv-2014.