Opinion
CA 02-01414
December 30, 2002.
Appeal from a judgment of Supreme Court, Erie County (O'Donnell, J.), entered September 4, 2001, which, inter alia, distributed the parties' marital property.
ANN T. HANULAK-OSSANNA, AMHERST, FOR DEFENDANT-APPELLANT.
LABIN BUFFOMANTE, WILLIAMSVILLE (THOMAS S. LABIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
We reject defendant's challenges to Supreme Court's disposition of the parties' property in this matrimonial action. Defendant failed to meet her burden of tracing the source of the funds that she loaned to plaintiff to her separate property, i.e., an inheritance she received during the marriage from her mother. Defendant thus failed to substantiate her contention that she is entitled to be credited with the amount of those funds in the distribution of assets ( see Haas v. Haas, 265 A.D.2d 887, 888; Judson v. Judson, 255 A.D.2d 656, 657). The court did not abuse its discretion in valuing the parties' IRA accounts and plaintiff's stock account as of the date of commencement of the action ( see Roehmholdt v. Russell, 272 A.D.2d 938, 939) and the marital residence as of the date of trial ( see Hutchings v. Hutchings, 155 A.D.2d 971, 971-972). The record establishes that the marital residence, purchased by plaintiff 17 years prior to the marriage, appreciated in value during the marriage partly as the result of defendant's direct contributions, and that the appreciation thus constitutes marital property ( see Price v. Price, 69 N.Y.2d 8, 19). In view of the conflicting evidence with respect to the portion of the appreciation in value attributable to defendant's efforts, we see no basis to disturb the percentage of the appreciation distributed to defendant ( see Lauria v. Lauria, 187 A.D.2d 888, 889). Contrary to defendant's further contention, it is evident that the Referee properly set forth in his report the statutory factors he considered and the reasons for his decision ( see McCanna v. McCanna, 274 A.D.2d 949). The Referee, moreover, was not required to consider factors on which the parties presented no evidence ( see Ferlo v. Ferlo, 152 A.D.2d 980, 982). We reject defendant's contention that the unequal distribution of marital assets constitutes an abuse of discretion ( see Niland v. Niland, 291 A.D.2d 876, 877). Defendant failed to establish that plaintiff's failure to make temporary maintenance payments was willful, and thus "[plaintiff] is not automatically entitled to counsel fees under Domestic Relations Law § 237(c)" ( Markhoff v. Markhoff, 225 A.D.2d 1000, 1002, lv denied 88 N.Y.2d 807). The court did not abuse its discretion in declining to award counsel fees incurred by defendant in seeking to enforce the temporary order ( see id.), nor did the court abuse its discretion in otherwise declining to award counsel fees to defendant (s ee § 237 [a]; Chase v. Chase, 208 A.D.2d 883, 885). Finally, in view of the parties' predivorce standard of living and the relevant statutory factors, the court properly declined to make an award of maintenance to defendant ( see generally § 236 [B] [6] [a]; Hartog v. Hartog, 85 N.Y.2d 36, 52).