Opinion
August 8, 1988
Appeal from the Supreme Court, Queens County (Zelman, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The trial court's finding of the defendant's cruel and inhuman treatment toward the plaintiff is supported in the record and we see no reason to overturn its granting of a divorce on that ground (see, Hessen v Hessen, 33 N.Y.2d 406; Clarkson v Clarkson, 103 A.D.2d 964; Miller v Miller, 104 A.D.2d 1032; Domestic Relations Law § 170).
We find that the trial court's award to the plaintiff of the exclusive possession, title and sole occupancy of the marital residence was proper. A review of the record indicates that the money for the down payment, closing costs and mortgage payments for the house was provided by the plaintiff's father for the benefit of the plaintiff. The testimony established that the defendant was irresponsible with money and contributed little, if any, financial support to the marriage. Based upon the defendant's minimal contribution to the purchase and maintenance of the house (see, Lisetza v Lisetza, 135 A.D.2d 20; Barnes v Barnes, 106 A.D.2d 535), the trial court did not err in awarding sole title to the marital residence to the wife (see, Barnes v Barnes, supra).
Although the trial court failed to specifically set forth its reasons for denying the defendant any distribution based on appreciation of the marital residence, the record is sufficient for this court to make a proper determination (see, Blackman v Blackman, 131 A.D.2d 801; Rubin v Rubin, 105 A.D.2d 736). The defendant did not directly or indirectly contribute to the appreciation of the property (see, Price v Price, 113 A.D.2d 299, affd 69 N.Y.2d 8; Billington v Billington, 111 A.D.2d 203; Borg v Borg, 107 A.D.2d 777, lv denied 65 N.Y.2d 606; Rubin v Rubin, 105 A.D.2d 736, supra). No proof of any contributions by the defendant was presented nor did the defendant even allege that he had contributed to the property's appreciation. His appraisal of the property, set forth in his appellate brief only, is dehors the original record and, in any event, is hearsay. It appears that the appreciation was "passive", that is, predicated solely on an improving real estate market. Thus, the trial court properly denied the defendant a share of the appreciation (see, Price v Price, supra; Lisetza v Lisetza, supra; Brennan v Brennan, 103 A.D.2d 48; Conner v Conner, 97 A.D.2d 88).
Finally, we find that the trial court was correct in ordering child support as to both children of the marriage. There is no evidence in the record to support the defendant's contention that the children were emancipated and that his obligation to support them pursuant to Family Court Act § 413 had terminated (see, e.g., Matter of Roe v Doe, 29 N.Y.2d 188, 193; Matter of Drago v Drago, 138 A.D.2d 704; Matter of McCarthy v Braiman, 125 A.D.2d 572). Mollen, P.J., Mangano, Kunzeman and Weinstein, JJ., concur.