DeCABRERA v. CABRERA-ROSETE, N.Y., Judgment, Law, casemine.com

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Advocates

Gerald Zuckerman and Jack Minoff for appellant. William D. London and A. Albert Buonamici for respondent.

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Smart Summary

Factual and Procedural Background

Approximately one year after their marriage, in May 1979 plaintiff wife and defendant husband purchased a cooperative apartment in Manhattan for $182,000, paid entirely from plaintiff's German bank account that she had opened with a $200,000 gift from her father. The parties agreed that defendant would transfer all his rights in the apartment to plaintiff upon her request. The stock certificate was registered in both names to meet cooperative income requirements, and on May 4, 1979 defendant signed a statement confirming plaintiff paid for the apartment and that he would transfer his rights on request. In June 1982 defendant moved out after committing cruel and inhuman acts against plaintiff and thereafter refused to provide support; he also refused requests to endorse the stock certificate to plaintiff. Financial statements showed the defendant owned a home in Darien, Connecticut.

At trial, the marriage was dissolved. Relying on Kobylack v Kobylack and Barnes v Barnes, the trial court denied defendant any equitable share in the apartment, ordered defendant to pay plaintiff $10,000 in counsel fees and $24,591.31 for apartment maintenance and utilities. The Appellate Division affirmed. Defendant appealed to the Court of Appeals, which affirmed the Appellate Division's order with costs.

Legal Issues Presented

Whether the courts erred in failing to grant defendant a share of the appreciated value of the apartment.
Whether the courts erred in awarding plaintiff counsel fees.
Whether the courts erred in compelling defendant to reimburse plaintiff for apartment maintenance and utilities.

Arguments of the Parties

Appellant's Arguments

The courts below erred in failing to grant him a share of the appreciated value of the apartment.
The courts erred in awarding plaintiff counsel fees.
The courts erred in compelling him to reimburse plaintiff for apartment maintenance and utilities.

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

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kobylack v Kobylack (110 Misc.2d 402, mod 96 A.D.2d 831, revd 62 N.Y.2d 399)	Authority for denying an equitable share where facts are closely akin.	The trial court relied on this case as closely akin and declined to award defendant any equitable share in the apartment; the Court of Appeals upheld that discretion.
Barnes v Barnes (106 A.D.2d 535)	Authority analogous to the facts supporting denial of an equitable share.	The trial court relied on this case in declining to award defendant an equitable share; the Court of Appeals affirmed that exercise of discretion.
Walsh v Walsh, 92 A.D.2d 345	Support for the proposition that indigency is not a prerequisite to an award of counsel fees.	Cited to show that a court may award counsel fees in its discretion without a showing of indigency; the Court upheld the counsel-fee award as within discretion under Domestic Relations Law § 237(a).

Court's Reasoning and Analysis

The Court affirmed the Appellate Division based on the trial court's factual findings: plaintiff alone paid the purchase price from separate funds and the parties had agreed defendant would transfer his interest upon request; defendant's contributions were minimal or nonexistent; defendant committed cruelty and abandoned support. Given those findings, the Court held it was not an abuse of discretion to deny defendant any share in the apartment's appreciation and expressly declined to decide whether any appreciation became marital property.

Regarding counsel fees, the Court explained that Domestic Relations Law § 237(a) grants discretionary power to award counsel fees "as justice requires," and that the statute's omission of the word "necessary" permits flexibility; indigency is not required. The court should consider the financial circumstances of both parties and other case circumstances (including relative merits). Applying this standard, the Court upheld the trial court's award of counsel fees.

The Court also found no abuse of discretion in the trial court's award requiring defendant to reimburse plaintiff for apartment maintenance fees and utilities.

Holding and Implications

Order affirmed, with costs.

Direct effects: the defendant received no equitable share in the apartment or its appreciation; defendant was ordered to pay $10,000 in counsel fees and $24,591.31 for apartment maintenance and utilities as previously awarded by the trial court. The opinion does not announce a new broad precedent beyond affirming the exercise of discretion in these respects.

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KARIN F. DeCABRERA, Respondent, v. JORGE A. CABRERA-ROSETE, Appellant.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

As found by Trial Term and affirmed by the Appellate Division, approximately one year after their marriage, plaintiff wife and defendant husband in May 1979 purchased a cooperative apartment on East 72nd Street in Manhattan. The entire purchase price — $182,000 — was paid from money in plaintiff's account in a German bank, which she had opened prior to marriage with a $200,000 gift from her father. Before and after the purchase, the parties agreed that defendant would transfer all of his right, title and interest in the apartment to plaintiff upon her request. The stock certificate representing ownership of the apartment was registered in the names of both spouses to satisfy income requirements of the cooperative. However, on May 4, 1979, defendant signed a statement confirming that the apartment was paid for by plaintiff, and that upon plaintiff's request he would transfer his rights in it to her. In June 1982, defendant moved out of the apartment, having committed various cruel and inhuman acts which endangered plaintiff's physical and mental well-being, rendering it unsafe and improper for her to continue living with him. Prior and subsequent to moving out, defendant refused and neglected to provide for the support of plaintiff. On a number of occasions, plaintiff requested that he endorse to her the stock certificate representing ownership of the apartment, but defendant refused. Financial statements of both parties were before the trial court. Defendant acknowledges that he is (and was at the time of the marriage) owner of a home in Darien, Connecticut, as his financial statement revealed.

Following trial of plaintiff's action for divorce and related relief, judgment was granted dissolving the marriage. Relying on Kobylack v Kobylack ( 110 Misc.2d 402, mod 96 A.D.2d 831, revd 62 N.Y.2d 399) and Barnes v Barnes ( 106 A.D.2d 535), which the trial court found closely akin to the facts of this case, the court declined to award defendant any equitable share in the apartment, and additionally ordered defendant to pay $10,000 in counsel fees and $24,591.31 for "legal necessities" consisting of apartment maintenance fees and utilities. The Appellate Division affirmed. Before us defendant now urges that the courts below erred in three respects — first, in failing to grant him a share of the appreciated value of the apartment; second, in awarding plaintiff counsel fees; and third, in compelling him to reimburse plaintiff for her expenditures for apartment maintenance and utilities. Based on this record and the affirmed findings that defendant's contributions were minimal or nonexistent, we conclude that it was not an abuse of discretion for the trial court to deny defendant any share in the appreciated value of the apartment. We need not reach defendant's contention that in some manner the appreciation became marital property.

Nor can it be said that there was an abuse of discretion in awarding counsel fees to plaintiff without a showing that she was in need. Pursuant to Domestic Relations Law § 237 (a), a court in a divorce action may award counsel fees to a spouse "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." Section 237 replaced section 1169 of the Civil Practice Act, and — significantly — omitted the word "necessary" which had preceded the phrase "to enable the wife to carry on or defend the action." This omission left the courts with flexibility when considering applications for counsel fees (see, Report on Joint Legislative Comm on Matrimonial Family Laws, 1961 N.Y. Legis Doc No. 19, at 80-83, 98; Rothenberg, Matrimonial Allowances in New York § 30, at 51 [1976 Supp]). Indigency is not a prerequisite to an award of counsel fees (see, Walsh v Walsh, 92 A.D.2d 345). Rather, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions. By like token, the trial court's discretionary award to plaintiff of reimbursement for apartment maintenance and utilities may not be disturbed.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

Order affirmed, with costs, in a memorandum.

DeCABRERA v. CABRERA-ROSETE