Feldman v. Feldman, Appellate Division, 2nd Dept. (May 2, 1994)

Factual and Procedural Background

The appeal was taken by Robert S. Feldman from a judgment of the Supreme Court, Nassau County (Mellan, J.H.O.). The trial court found the former husband not guilty of egregious conduct affecting equitable distribution but entered a judgment awarding the marital residence to the wife as her separate property and made no mention of other assets. The Appellate Division reversed the judgment on the law and the facts, without costs, and remitted the matter to the Supreme Court, Nassau County, for a hearing and recomputation of the distributive award in accordance with the opinion.

Legal Issues Presented

Whether the trial court erred by treating the marital residence as the wife's separate property and by failing to identify, value, and equitably distribute other assets acquired during the marriage.
Whether gifts between spouses made during the marriage constitute separate property or marital property subject to equitable distribution.
Whether the portion of pension value accrued during the marriage constitutes marital property subject to equitable distribution.
Whether the trial court abused its discretion by denying a one-day adjournment to permit a pension appraiser to testify.
Whether debts and money judgments claimed by the husband should have been treated as marital debts and required offers of proof.
Whether the trial court failed to enumerate the statutory factors under Domestic Relations Law § 236 (B) (5) (g) and thus erred.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Brien v. O'Brien, 66 N.Y.2d 576	Marital fault generally is not considered in equitable distribution.	Supported the general rule that fault should not affect distribution; court nonetheless noted trial court found no egregious conduct.
Blickstein v Blickstein, 99 A.D.2d 287	Same principle: marital fault is generally not considered.	Cited with O'Brien to establish the rule on fault and distribution.
Harrell v Harrell, 120 A.D.2d 565	Marital property acquired during marriage must be valued.	Supported the requirement that items acquired during the marriage be valued for distribution.
Coffey v. Coffey, 119 A.D.2d 620	Valuation of marital property acquired during marriage.	Used to support valuation requirement for marital assets.
D'Amato v. D'Amato, 96 A.D.2d 849	Valuation and treatment of marital property.	Cited in the court's instruction to value marital items acquired during the marriage.
Price v. Price, 69 N.Y.2d 8	Credit parties for initial contributions and then make distribution.	Directed that upon remittitur each party be credited with initial contributions to the purchase of the marital residence before distribution.
McAlpine v. McAlpine, 176 A.D.2d 285	Procedure for crediting contributions and distribution.	Cited to support the method of crediting initial contributions prior to distribution.
Butler v. Butler, 171 A.D.2d 89	Similar principle regarding contributions and distribution.	Included among authorities directing crediting of initial contributions.
Foppiano v. Foppiano, 166 A.D.2d 550	Gifts between spouses during marriage do not become separate property and are subject to equitable distribution.	Applied to reject treating a transfer of title to the marital premises as making it the wife's separate property if characterized as a gift.
Majauskas v. Majauskas, 61 N.Y.2d 481	Portion of a pension accrued during marriage is marital property.	Supported the statement that pension value accrued during marriage is subject to equitable distribution.
Shapiro v. Shapiro, 151 A.D.2d 559	Same rule regarding pension accrual during marriage.	Cited to reinforce that pension portions earned during marriage are marital property.
Saborio v Saborio, 147 A.D.2d 468	Adjournment applications are within trial court discretion and require balanced consideration of factors.	Used to conclude the trial court abused its discretion in refusing a one-day adjournment for a pension appraiser to testify.
McPeek v. Krishner, 134 A.D.2d 578	Same principle on adjournment discretion.	Cited to support the analysis that the denial of the one-day adjournment was an improvident exercise of discretion.
Brundage v. Brundage, 100 A.D.2d 887	Debts must have an offer of proof to be treated as marital expenses for offset.	Applied to require the husband to offer proof that money judgments were incurred for marital expenses.
Reiner v. Reiner, 100 A.D.2d 872	Same principle regarding offers of proof for marital debts.	Used with Brundage to mandate offers of proof on claimed marital debts upon remittitur.
Dunne v. Dunne, 172 A.D.2d 482	Requirement that the trial court enumerate statutory factors and the weight accorded each under Domestic Relations Law § 236 (B) (5) (g).	Applied to hold that the trial court erred by failing to place its factor-by-factor findings and weight on the record; remittal required compliance.

Court's Reasoning and Analysis

The court began from the established principle that marital fault generally does not affect equitable distribution. Although the trial court correctly found no egregious conduct by the husband, the appellate court held that the trial court nevertheless erred by awarding the marital residence to the wife as her separate property and omitting consideration of numerous other assets and obligations acquired during the marriage (including jointly owned real property in Pennsylvania, oil wells, an automobile, personalty, jewelry, pensions and annuities, trust funds established during the marriage, and improvements to the marital residence).

The court explained that items acquired during the marriage constitute marital property under Domestic Relations Law § 236 (B) (1) (c) and therefore should have been valued and distributed equitably, with credit given for initial contributions to the purchase of the marital residence (citing authorities on valuation and crediting). The court held that gifts between spouses during marriage do not automatically create separate property and that the portion of pension value accrued during the marriage is marital property. The trial court's denial of a one-day adjournment to permit a pension appraiser to testify was deemed an improvident exercise of discretion; the parties must be allowed to present pension valuation evidence on remittitur. The husband must make offers of proof to establish that certain money judgments constitute marital debts for possible offset. Finally, the court found error in the trial court's failure to enumerate the statutory equitable-distribution factors and the weight given each, as required by Domestic Relations Law § 236 (B) (5) (g).

Holding and Implications

HOLDING: The judgment is reversed on the law and the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and recomputation of the distributive award in accordance with the opinion.

Implications for the parties on remittitur:

All items acquired during the marriage identified in the opinion must be valued and considered marital property for equitable distribution.
Each party should be credited with initial contributions to the purchase of the marital residence before distribution.
The trial court must permit valuation evidence for pensions and the former wife's annuity (including allowing a pension appraiser to testify).
The former husband must offer proof that claimed money judgments are marital debts to be offset against marital assets.
The trial court must enumerate the statutory factors under Domestic Relations Law § 236 (B) (5) (g) and state the weight accorded each in the record.

No broader precedent was announced beyond application of existing authorities cited in the opinion; the decision's direct effect is remittal for further proceedings consistent with the court's directives.

Show full summary ...

LORETTA FELDMAN, Respondent, v. ROBERT S. FELDMAN, Appellant.

Ordered that the judgment is reversed, on the law and the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and recomputation of the distributive award, in accordance herewith.

It is well established that, as a general rule, marital fault of a party is not to be considered in determining equitable distribution of property following the dissolution of a marriage (see, O'Brien v. O'Brien, 66 N.Y.2d 576; Blickstein v Blickstein, 99 A.D.2d 287). While the trial court correctly found the former husband not guilty of egregious conduct sufficient to affect the equitable distribution award, it then erroneously issued a judgment which awarded the marital residence to the wife as her separate property, and made no mention of the parties' other assets. The court failed to consider alleged marital debt, the former husband's contributions (both financial and non-economic) to the marriage, real property in Pennsylvania which was jointly owned by the parties, oil wells, an automobile, items of personalty, jewelry given by the former husband to the former wife which had been given him by his mother, the pensions and annuities of the parties, the funds accumulated by the wife and held in four trust accounts for her daughter from a prior marriage, which were established during the course of the marriage, and the improvements to the marital residence which caused its value to appreciate greatly.

As all these items were acquired during the marriage, they constitute marital property (see, Domestic Relations Law § 236 [B] [1] [c]) and they should have been valued (see, Harrell v Harrell, 120 A.D.2d 565; Coffey v. Coffey, 119 A.D.2d 620; D'Amato v. D'Amato, 96 A.D.2d 849). Once valued, it was incumbent upon the court to make distributive awards thereof equitably between the parties, giving consideration to the circumstances of the case and of the respective parties (see, Domestic Relations Law § 236 [B] [5] [c]). Although the marital residence was the primary asset held by the parties, the court's disregard of the remaining items of marital property was unjustified. Further, gifts given by one spouse to another during the marriage do not constitute separate property and are subject to equitable distribution (see, Foppiano v. Foppiano, 166 A.D.2d 550), so that even if the court found that the former husband's transfer of title to the marital premises to the former wife was a gift, the premises did not become the separate property of the former wife. Further, neither party submitted any documentary proof as to the satisfaction of the mortgage on the marital premises. Upon remittitur, each party should be credited with their respective initial contributions to the purchase of the marital residence, and then a distribution shall be made (see, Price v. Price, 69 N.Y.2d 8; McAlpine v. McAlpine, 176 A.D.2d 285; Butler v. Butler, 171 A.D.2d 89).

That portion of the value of a pension which accrued during the marriage constitutes marital property subject to equitable distribution (see, Majauskas v. Majauskas, 61 N.Y.2d 481; Shapiro v. Shapiro, 151 A.D.2d 559).

As applications for adjournments are ordinarily addressed to the trial court's sound discretion, the court must engage in a balanced consideration of all relevant factors (see, Saborio v Saborio, 147 A.D.2d 468; McPeek v. Krishner, 134 A.D.2d 578). The trial court's refusal to grant a one-day adjournment to permit a pension appraiser to testify constituted a clear improvident exercise of discretion and, upon remittitur, the parties must be granted the opportunity to present evidence as to the value of the pensions and the former wife's annuity.

Domestic Relations Law § 236 (B) (1) (c) provides that outstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse who incurred them may be offset against the total marital assets to be divided. However, there must be an offer of proof that the debts constitute marital expenses (see, Brundage v. Brundage, 100 A.D.2d 887; Reiner v. Reiner, 100 A.D.2d 872). It was incumbent upon the former husband to establish his contention that various money judgments against him were incurred for marital expenses. Upon remittitur, he should make offers of proof as to these claimed marital debts.

In light of the foregoing, the matter must be remitted to the Supreme Court for a hearing and evaluation of all the items of marital property.

Further, the trial court utterly failed to enumerate the statutory factors involved in the equitable distribution award, as mandated by Domestic Relations Law § 236 (B) (5) (g). This requirement may not be waived by either party or counsel. While the court summarily stated at the close of its decision that it had weighed these factors, it neglected to place its considerations or findings on the record. This was error. Thus, upon remittitur, the trial court must enumerate the factors and the weight accorded each in compliance with Domestic Relations Law § 236 (B) (5) (g) (see, Dunne v. Dunne, 172 A.D.2d 482).

We have examined the former husband's remaining contentions and find them to be without merit. Sullivan, J.P., O'Brien, Santucci and Hart, JJ., concur.

FELDMAN v. FELDMAN