Published on:

Court Dismisses Appeal for Further Review of Division of Marital Property

In an action for a divorce and ancillary relief, the defendant man appeals from a decision of the Suffolk County Supreme Court made after a nonjury trial, and as limited by his brief, from stated portions of a judgment of the same court which, upon the decision has awarded the complainant woman a 50% share in the appreciation of the marital residence, directed the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, directed the defendant man to pay the sum of $352.27 per week in child support, and fixed the commencement date of the action as the valuation date for equitable distribution of the married parties’ assets.

A New York Family Lawyer said it is ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the complainant woman a 50% share in the appreciation of the marital residence, by deleting the provision thereof directing the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, and by deleting the provision thereof directing the defendant man to pay the sum of $352.27 per week in child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Suffolk County Supreme Court for further proceedings consistent herewith, and for entry of an amended judgment thereafter; and it is further ordered that pending a recalculation of the defendant man’s child support obligation, he shall continue to pay the sum of $352.27 per week for the support of the subject child.

The defendant man acquired the marital residence prior to the parties’ marriage, using the proceeds of a settlement from a personal injury action. A New York Custody Lawyer said the the deed and mortgage were placed and kept solely in his name. Consequently, the marital residence is separate property. The appreciation of, or increase in the value of, separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. A Manhattan Family Lawyer said the complainant failed to carry her burden establishing that the marital residence appreciated in value during the parties’ marriage and, if so, that such appreciation was due in part to her efforts. Thus, it was error for the Supreme Court to award the complainant woman a 50% share in the appreciation of the marital residence. Moreover, it was error for the Supreme Court to direct that this separate property be sold. However, the complainant woman is entitled to a credit for her equitable share of the marital funds that were used to pay off the mortgage, which was the defendant man’s separate debt. Accordingly, the matter is remitted to the Suffolk County Supreme Court for the calculation of that credit.

A New York City Family Lawyer said since the Supreme Court did not direct the complainant to pay the carrying charges for the marital residence, including the mortgage, during the pendency of her exclusive occupancy of it, the defendant man became obligated to do so, while also paying child support. Moreover, the Supreme Court did not award the defendant a credit against his child support obligation for any portion of the carrying charges he paid during the complainant woman’s exclusive occupancy of the marital residence. As a result, the defendant is making double shelter payments. Therefore, the matter must be remitted to the Suffolk County Supreme Court for a recalculation of the defendant’s child support obligation, with the defendant receiving a credit for any double shelter payments he previously made. The defendant’s remaining contention is without merit

Separation always makes the children suffer more than the parents. Eventually, the children loose the chance to be heard because the couple is busy fighting over who is supposed to pay for what. If you want to make sure that your children’s rights are given priority, ask for the Suffolk County Family Lawyer together with the Suffolk County Child Support Attorney. Stephen Bilkis and Associates can also provide the winning Suffolk County Guardianship Lawyer to help you pursue your legal action.

Contact Information