Opinion
12-23-2016
Peggyann HART, Plaintiff–Respondent, v. Charles R. HART, Defendant–Appellant. (Appeal No. 2.).
Mitchell Law Office, Oswego (Richard C. Mitchell, Jr., of Counsel), for Defendant–Appellant. Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Plaintiff–Respondent.
Mitchell Law Office, Oswego (Richard C. Mitchell, Jr., of Counsel), for Defendant–Appellant.
Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: In appeal No. 1, defendant husband appeals from an order in which Supreme Court determined that he willfully failed to obey two prior orders of the court and that plaintiff wife willfully failed to obey the provisions of Domestic Relations Law § 236(B)(2)(b). The court also suspended judgment against both parties. In appeal No. 2, defendant appeals from a judgment of divorce that, inter alia, directed equitable distribution of the marital property.
As a preliminary matter, we note that appeal No. 1 must be dismissed. Defendant does not challenge the finding against him of willful failure to obey the court's prior orders (see Abasciano v. Dandrea, 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 ), and he is not aggrieved by the finding against plaintiff with respect to her willful failure to obey the provisions of Domestic Relations Law § 236(B)(2)(b) (see CPLR 5511 ; see also Stewart v. Dunkleman, 128 A.D.3d 1338, 1341, 8 N.Y.S.3d 515, lv. denied 26 N.Y.3d 902, 2015 WL 5125616 ).
We agree with defendant in appeal No. 2 that the court erred in classifying as marital property a house he bought prior to the marriage (hereafter, Seneca Hill Property). It was undisputed that the Seneca Hill Property was purchased by defendant prior to the marriage, and we conclude that it was not transmuted into marital property when the parties used it as the marital residence for approximately two years, or by virtue of defendant having used some of the sale proceeds therefrom to assist in funding the purchase of a new marital residence (see Domestic Relations Law § 236[B][1][d][1] ; Ahearn v. Ahearn, 137 A.D.3d 719, 720, 26 N.Y.S.3d 566 ; Rivera v. Rivera, 126 A.D.3d 1355, 1356, 6 N.Y.S.3d 342 ). Defendant was therefore entitled to a credit for his separate property contributions to the marital estate (see Judson v. Judson, 255 A.D.2d 656, 657, 679 N.Y.S.2d 465 ; see also Maczek v. Maczek, 248 A.D.2d 835, 836–837, 669 N.Y.S.2d 749 ). We further conclude, however, that the appreciated value of the Seneca Hill Property that the court determined to be attributable to the contributions of plaintiff should have been classified as marital property (see Robinson v. Robinson, 133 A.D.3d 1185, 1187, 21 N.Y.S.3d 392 ; Macaluso v. Macaluso, 124 A.D.3d 959, 961, 1 N.Y.S.3d 464 ). We thus vacate the decretal paragraphs of the judgment directing equitable distribution of the marital property, and we remit the matter to Supreme Court for a redistribution thereof consistent with our decision.
We have reviewed defendant's other contentions in appeal No. 2 and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the decretal paragraphs directing equitable distribution of the marital property, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Oswego County, for further proceedings.