Opinion
2013-04809, 2013-04828, Index No. 22945/07.
09-23-2015
Christina L. GOLDMAN, respondent, v. Steven L. GOLDMAN, appellant.
Law Offices of Clifford J. Petroske, P.C., Bohemia, N.Y. (Michael W. Meyers of counsel), for appellant. Tabat, Cohen, Blum & Yovino, LLP, Hauppauge, N.Y. (Elizabeth Diesa and Joy Jankunas of counsel), for respondent.
Law Offices of Clifford J. Petroske, P.C., Bohemia, N.Y. (Michael W. Meyers of counsel), for appellant.
Tabat, Cohen, Blum & Yovino, LLP, Hauppauge, N.Y. (Elizabeth Diesa and Joy Jankunas of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL and HECTOR D. LaSALLE, JJ.
Opinion ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,
ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by adding thereto a provision awarding each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts they each expended after the commencement of the action on carrying charges related to the marital residence; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amounts that each party expended after the commencement of the action on carrying charges related to the marital residence, and for the entry of an appropriate amended judgment thereafter.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
The Supreme Court properly denied the defendant's application for a separate property credit with regard to the marital residence. Contrary to the defendant's contention, he failed to establish that the funds used to pay for the construction of the marital residence came from his separate property (see Golden v. Golden, 98 A.D.3d 647, 649, 949 N.Y.S.2d 753 ; Scher v. Scher, 91 A.D.3d 842, 846, 938 N.Y.S.2d 317 ; Massimi v. Massimi, 35 A.D.3d 400, 402, 825 N.Y.S.2d 262 ; Lynch v. King, 284 A.D.2d 309, 725 N.Y.S.2d 391 ).
Contrary to the defendant's contention, the Supreme Court properly determined that the funds held in a TD Ameritrade account should be distributed equally. Generally, compensation for personal injury is separate property (see Domestic Relations Law § 236[B][1][d][2] ). However, separate property that is commingled with marital property loses its separate character (see Golden v. Golden, 98 A.D.3d at 649–650, 949 N.Y.S.2d 753 ; Geisel v. Geisel, 241 A.D.2d 442, 443, 659 N.Y.S.2d 511 ). Here, while the account at its inception held the defendant's separate property in the form of a check for disability benefits in the amount of $400,000, over the years, that property was commingled with marital assets in the account and, therefore, lost its separate character.
“[G]enerally, it is the responsibility of both parties to maintain the marital residence ... during the pendency of a matrimonial action” (Hymowitz v. Hymowitz, 119 A.D.3d 736, 741, 991 N.Y.S.2d 57 [internal quotation marks omitted] ). “Where ... a party has paid the other party's share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required” (Le v. Le, 82 A.D.3d 845, 846, 918 N.Y.S.2d 561 ; see Judge v. Judge, 48 A.D.3d 424, 425–426, 851 N.Y.S.2d 639 ). Here, while both parties paid certain carrying charges related to the marital residence after the commencement of the action, the defendant paid the vast majority of these expenses. Since these expenses should have been allocated on a 50–50 basis, we modify the judgment by adding a provision thereto awarding each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts that they each expended after the commencement of this action on such carrying charges, and remit the matter to the Supreme Court, Suffolk County, for a determination of the amounts that each party expended after the commencement of this action on such carrying charges, and for the entry of an appropriate amended judgment thereafter (see Hymowitz v. Hymowitz, 119 A.D.3d at 742, 991 N.Y.S.2d 57 ; Le v. Le, 82 A.D.3d at 845–846, 918 N.Y.S.2d 561 ; Judge v. Judge, 48 A.D.3d at 425–426, 851 N.Y.S.2d 639 ).
The defendant's remaining contentions are without merit.