Opinion
04-2077.
Decided January 23, 2006.
Gage, Gage Bleakley, (Walter C. Gage, Esq., of Counsel), Counsel for Plaintiff.
Richard J. Grace, Esq., Counsel for Defendant.
This matter was transferred from the Matrimonial Screening Part after the parties settled all issues except equitable distribution. Upon inquiry, the parties informed the Court that they had agreed on all equitable distribution issues, except for the disposition of the proceeds from the sale of their Keuka Lake home. Specifically, the wife seeks a 50/50 split of the proceeds, after expenses; while the husband claims a $125,000 credit, prior to the 50/50 split of proceeds, after expenses. He argues that he made a $125,000 contribution towards the purchase of the premises from his separate property, to wit: an inheritance from his mother.
Trial was held on this sole issue on December 13, 2005, and the parties were given ten days for any submissions. The Court having heard the allegations and proofs of the parties hereto, together with all submissions, and due deliberation having been had thereon, I do hereby decide and find the essential facts which I deem established by the evidence as well as reach the following conclusions of law.
The parties were married in 1975; it being the second marriage for each. There are no children of the marriage.
The parties purchased the Keuka Lake property in 1996, for $125,000, taking title as tenants by the entirety, and giving a purchase money mortgage in the amount of $100,000. The existing home was then demolished, and a new house was constructed. To finance the building, they needed to secure a building and home loan along with paying off the balance of the existing purchase money mortgage. The husband paid off the purchase money mortgage as well as some of the construction costs using $125,000 of the funds he inherited from his mother. The parties subsequently sold the property for $725,000.00 in the Fall of 2005.
For many years, the wife lived in the Keuka Lake home, and the husband lived in the parties' Florida condominium. Each party paid the expenses for the home where each resided, including mortgage payments. The wife did not state what the source of the funds were that she used to pay the Keuka Lake home's expenses, except that for a period of time, she ran a bed and breakfast and used this money to help pay the home expenses.
The sole question before the Court is whether or not the husband is entitled to a $125,000 credit from the proceeds of the sale of the Keuka Lake property, before the sale proceeds are split?
In Wade v. Steinfeld, 15 AD3d 390, the Second Department held: "The Supreme Court properly determined that the plaintiff was entitled to a credit of $117,000 prior to the distribution of the proceeds from the sale of the marital residence. There, the plaintiff overcame the presumption that she intended to commingle her funds by depositing them for three days in the parties' joint account." (Cites omitted). Id., 65.
In Gonzalez v. Gonzalez, 291 AD2d 373, the marital residence was purchased after the parties' marriage, and so was marital property. However, the Second Department found that the trial court erred in failing to give the wife a credit for the $54,000 she contributed in separate property toward the purchase of the residence.
In Bartha v. Bartha, 15 AD3d 111, the court held that: "To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents, which had not been intermingled with marital funds, or from his own separate property, he is entitled to a credit for that contribution; but otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property." Id., 18. The Court further noted that the appreciation in the value of the property from its initial purchase to the date of commencement of the divorce was subject to equitable distribution, especially since the increase in value had to do with the renovations paid for by the parties marital funds, and also in that the mortgage payments were made from marital funds.
In the case at bar, the wife alleges that starting in 1999, she alone made the mortgage payments on the current mortgage. However, it does not appear that the wife is alleging that she made these payments from her own separate funds. Certainly, any salary earned by either party during the marriage, would not strictly be separate property. In any event, the wife has not offered proof on the total amount of such mortgage payments made, principal payments, etc.
The husband cites Parkinson v. Parkinson, 295 AD2d 909, and Myers v. Myers, 255 AD2d 711. In Parkinson, the wife's mother gifted her a home which was put in the names of both parties. However, the home was purchased with funds of the wife's mother, and the mother lived there until her death. At one point, the mother asked the husband to put the deed in just the wife's name, which he did. The Fourth Department found it to be the wife's separate property.
In Myers, supra, the Court stated: "We further conclude that Supreme Court properly credited defendant for her separate property in the amount of $10,000, representing the money she invested in the parties' cash purchase of their first marital dwelling. (Citation omitted). In our view, defendant's investment did not lose its character as separate and traceable funds when the marital residence was subsequently mortgaged and the proceeds of the mortgage invested in the parties' purchase of the Jackson Avenue investment property in 1974." Id., 715.
In conclusion, the Court finds that defendant husband has met his burden of proving that $125,000 of the funds used to purchase the Keuka Lake property was separate property. Therefore, he is entitled to a credit in that amount before the total proceeds are split.
The foregoing constitutes the Opinion, Decision and Order of this Court.
Plaintiff's counsel to submit Judgment Roll in accordance herewith and the parties previous stipulations within sixty (60) days.
SO ORDERED.