Opinion
892 CA 21-00525
11-19-2021
Heidi G. EDWARDS, Plaintiff-Respondent, v. Bruce W. EDWARDS, Defendant-Appellant.
EISENHUT & EISENHUT, UTICA (CLIFFORD C. EISENHUT OF COUNSEL), FOR DEFENDANT-APPELLANT. MACHT, BRENIZER & GINGOLD, P.C., SYRACUSE (JON W. BRENIZER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
EISENHUT & EISENHUT, UTICA (CLIFFORD C. EISENHUT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MACHT, BRENIZER & GINGOLD, P.C., SYRACUSE (JON W. BRENIZER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second ordering paragraph except insofar as it distributes $126,822.25 to the sale and escrow agents and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: In this post-divorce action, plaintiff wife moved for an order approving an accounting of funds held in an escrow account and the proposed distribution thereof. The escrow account held the net proceeds from the sale of a farm owned and operated by the parties during the marriage. According to a prior court order, the proceeds of that account were to be equally distributed between the parties subject to any credits due to each party. Supreme Court granted the motion in part by approving the accounting of the escrow funds and granting plaintiff certain credits. Defendant husband appeals.
We agree with defendant that the court erred in deciding the value of plaintiff's credits without a full evidentiary hearing permitting the parties to offer proof of valuation (see Michalek v. Michalek , 180 A.D.2d 890, 891, 579 N.Y.S.2d 497 [3d Dept. 1992] ; Norgauer v. Norgauer , 126 A.D.2d 957, 957-958, 511 N.Y.S.2d 731 [4th Dept. 1987] ). Plaintiff offered no direct proof of the value of the relevant assets, and defendant was not afforded an opportunity to cross-examine the court-appointed appraiser or review the appraisals (see Banker v. Banker , 56 A.D.3d 1105, 1107-1108, 870 N.Y.S.2d 481 [3d Dept. 2008] ). The court's decision also failed to articulate the factors it considered or the reasons for its determination to partially grant certain credits to plaintiff and deny others (see Domestic Relations Law § 236 [B] [5] [g] ; Antinora v. Antinora , 125 A.D.3d 1336, 1339, 3 N.Y.S.3d 500 [4th Dept. 2015] ; Hansen v. Hansen , 229 A.D.2d 960, 961, 645 N.Y.S.2d 246 [4th Dept. 1996] ). We therefore modify the order by vacating the second ordering paragraph except insofar as it distributes $126,822.25 to the sale and escrow agents, and we remit the matter to Supreme Court for a hearing and appropriate findings of fact and conclusions of law with respect to the parties’ entitlement to credits.
Defendant's remaining contention that service of certain submissions was improper is not properly before us inasmuch as it is raised for the first time in his reply brief (see Scully v. Scully , 104 A.D.3d 1137, 1138, 961 N.Y.S.2d 646 [4th Dept. 2013] ). Likewise, defendant's contention that he should be credited for certain temporary maintenance payments is raised for the first time on appeal and is, therefore, not properly before us (see Ferrante v. Ferrante , 186 A.D.3d 566, 570, 128 N.Y.S.3d 590 [2d Dept. 2020] ).