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Smart Summary

Factual and Procedural Background

Plaintiff and defendant married in New Jersey on September 9, 1983. Plaintiff previously owned an accounting practice and an office building purchased before the marriage. In 1988 plaintiff sold the accounting practice and the office building; the parties moved to Tompkins County and bought Decker Pond Inn, a bed and breakfast. This action for divorce and equitable distribution was commenced July 18, 1990. After a nonjury trial and a supplemental hearing, Supreme Court (Tompkins County) granted divorces, classified property and distributed marital assets, ordered sale of certain personal property and the marital residence/bed and breakfast with proceeds to be divided equally. Both parties filed cross appeals challenging various equitable distribution rulings; the Appellate Division issued the opinion modifying and otherwise affirming the judgment in part.

Legal Issues Presented

  1. Whether the office building purchased by plaintiff prior to marriage is separate property and whether defendant is entitled to share in its appreciation.
  2. Whether plaintiff is entitled to credits for using proceeds of the office building sale to purchase and improve Decker Pond Inn and its personal property.
  3. Whether defendant is entitled to a credit for capital gains taxes paid on the sale of the office building when marital funds were used to pay those taxes.
  4. Whether certain shares of National Community Bank and Public Service Electric and Gas (PSEG) stock and related dividends are marital or separate property and, if marital, how dividends should be distributed.
  5. Whether plaintiff is entitled to a share of defendant's Merrill Lynch individual retirement account acquired through employer contributions during the marriage and whether plaintiff met his burden to establish an interest.
  6. Whether it was appropriate for the trial court to order sale of marital property (including the bed and breakfast) and whether defendant is entitled to credits for post-commencement expenditures to operate the business.

Arguments of the Parties

Appellant-Respondent (James A. Carney) Arguments

  • Plaintiff claimed he was entitled to credits with respect to Decker Pond because proceeds from the sale of his pre-marriage office building were used for the down payment, renovations and personal property of Decker Pond.
  • Plaintiff contended 80 shares of National stock should be his separate property.
  • Plaintiff claimed entitlement to a portion of defendant's Merrill Lynch individual retirement account acquired through employer contributions during the marriage.

Respondent-Appellant (Diane C. Carney) Arguments

  • Defendant sought a credit for capital gains taxes paid on the sale of plaintiff's office building, contending marital funds were used to pay those taxes; she also contended one final tax payment was made with a loan from her mother and sought full credit for that payment.
  • Defendant was awarded one half of dividends on 600 shares of PSEG stock by the trial court; she defended that award (issue addressed on appeal).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881 That a nonowning spouse must show contribution to appreciation of separate property to share in its increased value. Applied to deny defendant any share in the office building's appreciation because she failed to establish contribution to its increase in value.
Price v Price, 69 N.Y.2d 8, 15-16 Same principle regarding contribution to appreciation of separate property. Applied with DeCabrera to foreclose defendant's entitlement to increased value of the office building.
Glazer v. Glazer, 190 A.D.2d 951, 953 Commingling separate funds into joint accounts converts separate property into marital property. Applied to treat proceeds from the office building sale as marital where plaintiff deposited them in joint accounts and could not trace funds used for Decker Pond.
Pullman v. Pullman, 176 A.D.2d 113, 114 Commingling and tracing rules; inability to trace separate funds precludes credit. Applied to deny plaintiff credits for Decker Pond expenditures when separate funds were commingled and not traceable.
Di Nardo v. Di Nardo, 144 A.D.2d 906, 907 Commingling precedent supporting conversion of separate to marital property. Used to support treatment of sale proceeds as marital property.
Heine v. Heine, 176 A.D.2d 77, 83, lv denied 80 N.Y.2d 753 When separate funds cannot be specifically traced, proceeds may be treated as marital property. Applied to deny plaintiff credits where tracing was not possible.
Sarafian v. Sarafian, 140 A.D.2d 801, 804 Tracing and characterization principles for commingled assets. Applied in support of treating proceeds as marital property and denying credits.
Pontorno v. Pontorno, 172 A.D.2d 734 Relates to proof required to establish separate ownership of stock pre-marriage. Applied to support treating National stock as marital where plaintiff failed to prove prior ownership of specific shares.
Majauskas v. Majauskas, 61 N.Y.2d 481, 485-486 Contributions to retirement accounts during marriage are marital in nature. Applied to conclude contributions to defendant's Merrill Lynch IRA made during the marriage could not be characterized entirely as separate property.
Shapiro v. Shapiro, 151 A.D.2d 559, 561 Burden on a spouse to establish the value of an interest in contested assets. Referenced regarding plaintiff's alleged failure to establish value of interest in Merrill Lynch account, though court found no reversible error.
Davis v. Davis, 128 A.D.2d 470 Procedural/burden aspects on proving asset valuation. Cited in context of burden to prove interest in retirement accounts.
Michalek v. Michalek, 114 A.D.2d 655, 657, lv denied 69 N.Y.2d 602 Standards for proving financial interests and valuations in equitable distribution. Referenced concerning plaintiff's burden to establish his interest in defendant's retirement account.
Church v. Church, 169 A.D.2d 851, 853 Authority that sale of marital property can be appropriate in equitable distribution. Applied to uphold the trial court's order to sell marital property under the circumstances.
Millman v. Millman, 168 A.D.2d 777, 779 Supports sale of marital property as an appropriate remedy. Used to affirm the appropriateness of ordering sale of the marital residence/business.
Tanner v. Tanner, 107 A.D.2d 980, 982 Precedent approving sale of marital property in certain circumstances. Cited in upholding the trial court's sale order.

Court's Reasoning and Analysis

The court first classified the office building as plaintiff's separate property because it was acquired before the marriage. It applied DeCabrera and Price to hold that defendant could not share in appreciation absent proof her efforts contributed to it. The court rejected plaintiff's claim to credits for Decker Pond purchases because plaintiff deposited the proceeds of the office building sale into joint accounts, commingling and thereby converting those proceeds to marital property (citing Glazer, Pullman, Di Nardo); because plaintiff could not specifically trace funds used, credits were denied (citing Heine, Pullman, Sarafian).

Regarding capital gains taxes on the office building sale, the court found a major portion had been paid from proceeds of the parties' marital residence; since the building (and its appreciation) was separate property, marital funds should not have been used to pay that liability and defendant was entitled to a credit for one half of those taxes. A final payment alleged by defendant to have come from a loan by her mother lacked conclusive evidence of a nonmarital source, so defendant was limited to one half credit of that payment.

The court credited defendant for $3,000 she gave to plaintiff at separation, noting plaintiff testified it would offset eventual distribution. On the stock issues, plaintiff failed to prove that 80 shares of National were separate; all 134 shares and dividends were treated as marital (citing Pontorno, Pullman). The court determined Supreme Court erred in awarding defendant one half of dividends on 600 shares of PSEG because plaintiff sold those shares about three months before commencement of the action; the judgment was modified to reverse that award.

As to the Merrill Lynch IRA, because contributions were made during the marriage, Supreme Court erred in treating the entire account as separate (citing Majauskas). Although plaintiff argued he failed to prove his interest in the account, given the parties' circumstances and that each retained individual retirement accounts (including $9,100 in plaintiff's accounts deemed marital), the appellate court found no reversible error in declining to award plaintiff a share of the Merrill Lynch account.

Finally, the court held the trial court properly ordered sale of the marital property (citing Church, Millman, Tanner). Defendant was not entitled to credits for capital expenditures and maintenance costs after commencement because she was permitted to retain business revenues and her evidence supporting such credits was lacking. The court considered remaining contentions and found them without merit.

Holding and Implications

Core Ruling: The judgment is modified, on the law, without costs, by reversing so much thereof as awarded defendant one half of the dividends attributable to 600 shares of Public Service Electric and Gas stock; awarding defendant a credit for one half of the capital gains taxes paid on the sale of plaintiff's office building; and awarding plaintiff a credit in the amount of $3,000; and, as so modified, affirmed.

Implications: The effect on the parties is (1) defendant loses the award of one half of the PSEG dividends; (2) defendant receives a one-half credit for capital gains taxes paid with marital funds on the sale of plaintiff's separate office building (but not a full credit for the final payment absent proof of a nonmarital source); and (3) plaintiff receives a $3,000 credit for funds given at separation. The court affirmed the characterization of Decker Pond expenditures as marital due to commingling, upheld sale of marital property, and declined to award further credits claimed by the parties. The opinion applies existing precedents but does not announce a new rule of law beyond application of those authorities.

JAMES A. CARNEY, Appellant-Respondent, v. DIANE C. CARNEY, Respondent-Appellant.

Cardona, P.J.

Plaintiff and defendant were married in New Jersey on September 9, 1983 at which time they were 53 and 47 years of age, respectively. This was the third marriage for both parties. In 1988, plaintiff sold his accounting practice and the parties moved to Tompkins County, where they bought a bed and breakfast establishment called Decker Pond Inn. This action for divorce and equitable distribution was commenced on July 18, 1990. After a nonjury trial and a supplemental hearing to obtain additional evidence on the specific value of certain property, Supreme Court granted each of the parties a divorce, classified the parties' property and distributed the marital assets. Certain personal property, which the court deemed to be marital but which was not specifically awarded to either party, was ordered sold with the proceeds to be divided equally. The court also ordered the parties to sell the marital residence, including the bed and breakfast business, with these proceeds also to be divided equally after expenses. Both parties have filed cross appeals raising various issues with respect to equitable distribution, only some of which now merit discussion.

Prior to the parties' marriage, plaintiff acquired an office building in New Jersey for $120,000 to which he made several thousand dollars worth of improvements. No further capital improvements were made after the parties married. In July 1988, the building was sold for $340,000 and a gain of $233,265 was realized. There is no question that this building was plaintiff's separate property having been purchased prior to the parties' marriage (see, Domestic Relations Law § 236 [B] [1] [d] [1]). Furthermore, we find that defendant is not entitled to share in the increased value of this building as she has failed to establish that her efforts contributed to its appreciation (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881; Price v Price, 69 N.Y.2d 8, 15-16). Similar reasoning forecloses defendant's entitlement to one half of the proceeds that plaintiff received from the sale of his accounting business which was well established for 27 years when the parties married.

Despite the characterization of the office building as separate property, we reject plaintiff's contention that he is entitled to certain credits with respect to Decker Pond, claiming that he used the proceeds from the sale of the office building for the down payment on said property, its renovations and the personal property contained therein. First, as Supreme Court held, the parties always intended that their purchase in this property, both real and personal, would be marital property and treated it as such in all respects. In addition, although the proceeds of the sale were initially separate property, plaintiff put this money into joint bank accounts out of which all of these purchases were made. Having taken the separate property and commingled it with assets in a joint account, plaintiff converted the proceeds to marital property (see, Glazer v. Glazer, 190 A.D.2d 951, 953; Pullman v. Pullman, 176 A.D.2d 113, 114; Di Nardo v. Di Nardo, 144 A.D.2d 906, 907). Because plaintiff cannot specifically trace the source of the funds used to make the purchases with respect to Decker Pond, the court is justified in treating the proceeds as marital property and, therefore, plaintiff is not entitled to any credits for said purchases (see, Heine v. Heine, 176 A.D.2d 77, 83, lv denied 80 N.Y.2d 753; Pullman v. Pullman, supra, at 114; Sarafian v. Sarafian, 140 A.D.2d 801, 804).

We now turn to the issue of the capital gains taxes that were owed on the office building. The record reveals that a major portion of these taxes were paid out of the proceeds from the sale of the parties' marital residence in New Jersey. Having determined that the building, including the appreciation thereof, was plaintiff's separate property, we find that marital funds should not have been used to pay off this liability and, therefore, defendant is entitled to a credit of one half of these capital gains taxes. With regard to the final payment, defendant contends that she is entitled to a credit for the entire amount, alleging that the source of said payment was a loan from her mother. Because there is no conclusive evidence that this payment came from anything other than marital assets, we find that defendant is only entitled to one half of that payment also.

Defendant should also be given a credit for the $3,000 which she gave to plaintiff when the parties separated. Plaintiff specifically testified that this money would be used to offset the eventual distribution of their assets.

We now turn to the issues raised with respect to plaintiff's shares of stock in National Community Bank (hereinafter National) and Public Service Electric and Gas (hereinafter PSEG). Initially, we reject plaintiff's contention that 80 shares of National stock should have been deemed his separate property. As plaintiff failed to offer any conclusive evidence as to the number of shares of National stock that he may have owned prior to the marriage, although given ample opportunity to do so, we agree with Supreme Court that all 134 shares of said stock, and the dividends derived therefrom, constitute marital property (cf., Pontorno v. Pontorno, 172 A.D.2d 734; see, Pullman v Pullman, 176 A.D.2d 113, 114, supra). We find, however, that Supreme Court erred in awarding defendant one half of the dividends on the 600 shares of PSEG stock because plaintiff sold these shares some three months prior to the commencement of the action. As the total amount of these dividends equalled $3,204, to which defendant was awarded one half, the judgment should be modified accordingly.

Plaintiff also claims that he is entitled to that portion of defendant's Merrill Lynch individual retirement account which she acquired, through employer contributions, while they were married. Inasmuch as the contributions to this account were made during the course of the parties' marriage, Supreme Court erred in characterizing the entire account as separate property (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 485-486). It is argued that plaintiff failed to meet his burden of establishing the value of his interest in this account and, therefore, he is not entitled to any share of it (see, Shapiro v. Shapiro, 151 A.D.2d 559, 561; Davis v. Davis, 128 A.D.2d 470; Michalek v. Michalek, 114 A.D.2d 655, 657, lv denied 69 N.Y.2d 602). However, given the parties' respective financial circumstances and the fact that each party was able to keep those individual retirement accounts in his or her name, including $9,100 in plaintiff's accounts which were deemed marital property, we find that no error results from Supreme Court's failure to award plaintiff a share of the Merrill Lynch account.

We finally note that it was not inappropriate, under the circumstances herein, for Supreme Court to order the sale of the marital property (see, Church v. Church, 169 A.D.2d 851, 853; Millman v. Millman, 168 A.D.2d 777, 779; Tanner v. Tanner, 107 A.D.2d 980, 982). Moreover, defendant is not entitled to any credit for the capital expenditures and maintenance costs allegedly incurred to operate the business after the commencement of the action inasmuch as she was entitled to retain all revenues relating to the operation of Decker Pond and her evidence to support this claim is lacking. Any remaining contentions advanced by plaintiff and defendant have been considered and found lacking in merit.

Mercure, Crew III, White and Weiss, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as awarded defendant one half of the dividends attributable to 600 shares of Public Service Electric and Gas stock; award defendant a credit for one half of the capital gains taxes paid on the sale of plaintiff's office building and award plaintiff a credit in the amount of $3,000; and, as so modified, affirmed.

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CARNEY v. CARNEY
(Mar 24, 1994)