STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
PAMELA J. HAYDEN,
-vs- Index #H-08313
LARRY P. HAYDEN,
ANTHONY J. SPANN, P.C.
(James J. Spann, Esq.
of Counsel) for Plaintiff
MARGARET LOGAN NOONAN, ESQ.
An equitable distribution trial was held in this matter
on April 20 and 21, 1995, on issues unresolved by stipulation
of the parties.
The parties were married on 10/4/74 and have two
children born in 1979 and 1981. Custody and visitation
issues have previously been settled.
The plaintiff is age 40; the defendant, age 41. Service
of summons was on 11/4/93. A divorce was granted on 3/6/95.
The wife would like to remain in the home until the
youngest child graduates from high school in approximately
four years. The husband opposes this.
The marital residence is a 5 bedroom home situated on
over 3 acres. Currently the wife lives there with the 2
children. The husband is living in a trailer and claims he
can not get a loan while his name remains on the mortgage.
The wife did not show any need to continue to reside in
the marital home or any special circumstances other than the
children's understandable desire to remain in the home until
the youngest graduates from high school.
For the sake of stability, the Courts favor solutions
that permit children, whose lives are already impacted by the
parents marital disputes, to live in the marital home; but,
the financial situation of the parties must also be
The husband is currently unable to purchase a home for
himself for two reasons: lack of funds, and, inability to
qualify for a mortgage while he is committed on the mortgage
on the marital residence.
No evidence was produced to show that the rental or
mortgage payments for a smaller home would be equal to or
expensive than the cost to retain the marital residence.
Nor was there evidence of physical abuse or other
circumstances justifying exclusive possession regardless of
Case law supporting exclusive possession is generally
based on the showing that there is enough money from other
sources for both parties to live in a manner that would not
grossly curtail their former lifestyle. See LAURER V LAURER,
145 AD2d 470, BEHRENS V BEHRENS, 143 AD2d 617.
That is not the case here; moreover, the parties have
debts that could be met or reduced out of marital proceeds.
The proof indicates that the husband's monthly expenses
exceed his income, but, the proof also demonstrates he
incurred some of the excess over income after the action was
commenced. For example, he traded in a relatively new
automobile for a vehicle requiring an additional $100 or more
in monthly payments.
There is a question whether, even with the husband's
contribution, the wife would have sufficient income to
maintain the home; however, the Court is convinced if anyone
could accomplish this, the wife could.
The Court must decide the value of the marital
residence. The parties have submitted appraisals that are
dramatically different. The husband's appraisal is for
$132,000 and the wife's for $92,000; both done by reputable
appraisers. Naturally, with such a discrepancy, the parties
were unable to reach consensus on the value of the home and
submitted the issue to this Court. The wife's appraisal took
into account the unfinished nature of much of the home
including unfinished drywall, flooring, door jams, trim and
The husband's appraisal from Smith Realty listed even
more unfinished aspects that included the stairway, the
second floor rooms including panels, ceilings, sub-floors,
walls, closets and the fact that part of the outside deck
needs to be releveled due to sinking piers. However, no
adjustments are set out for these items.
Smith Realty said its appraisal was based on two
approaches: comparable sales and replacement value less
depreciation, but no details of replacement or depreciation
were set forth.
Both appraisals left a bit to be desired. In such a
situation, the Court may take the average of both. That
would seem to be the most equitable approach and would result
in a value for equitable distribution purposes of $112,000.
It is noted that the mortgage is currently estimated at
An option that the parties may consider to permit the
children to remain in the home is this: that an attempt to be
made to increase the mortgage on the marital residence and
advance the funds to the husband to allow him to pay debts or
acquire a home.
If that option fails to materialize within 10 business
days from this Memorandum Decision, within 5 business days
thereafter, the husband is to quote a price and the terms at
which he is willing to sell, or, to buy the interest of the
wife. The wife shall have the right to (1) buy, or sell to
the husband, at the price and on the terms he quotes, or, (2)
place the home on the market at $125,000 or other price
agreed to by the parties.
That decision must be made within 10 business days from
receipt of the husband's quotation.
If the wife opposes listing the property at $125,000,
and the parties cannot agree on a solution, the Court orders
that the residence be placed on the market for $125,000.
The husband shall pay child support pursuant to the
Child Support Standards Act of $193.00 as long as neither
child is emancipated. He currently earns $43,500 annually.
He shall have the right to claim one of the children as a
dependent for income tax purposes as long as he pays his
child support. The husband also is paying $41.61 per pay
period (twice per month) for health insurance for the
children. The wife has recently doubled her income and now
earns about $28,500 which is about 40% of the husband's
earnings, but, as she is receiving maintenance and child
support payments, and, he is paying the insurance, the
parties shall equally pay any uninsured reasonable health
costs for the children including medical, dental, optical,
and pharmaceutical expenses.
The husband has a savings plan at work with over
$30,000. The parties agree that this employment benefit
shall be distributed through a Qualified Domestic Relations
Order at 50% coverture, but do not agree about the credit or
timing of loans taken from the plan.
The evidence shows that at the commencement of the
action, the account had a balance of $32,654.64 with a loan
balance of $10,470.85. Since that time, the husband has
borrowed twice from the account. The wife claims had the
husband not borrowed from the account, the loan balance would
now be $7,675.08 and that she is entitled to $14,056.94.
The Court rules that the account shall be divided as of
the date of the commencement of the action. The wife has not
contributed to the reduction of the debt during the pendency
of this action from 11/93 to the present and has been
receiving maintenance during this time.
The wife has possession of the 1987 Dodge Caravan which
is paid for in full. There is no dispute that this car is
worth about $3000. The wife shall have sole title and use of
After the action was commenced, the husband purchased a
Jeep that has virtually no equity and upon which he is making
monthly payments of $382.48. The wife shall return title to
the Jeep to the husband who shall have sole title and use of
this car and be solely responsible for the payments and hold
the wife harmless thereon.
The wife is to provide a time when the husband can pick up any of his personal effects and clothing remaining at the
home as well as an over the wheel storage chest for pick up,
and the tools, saw horses and carpentry books in the garage.
The wife shall retain all the rest of the tangible
personal property, including household furnishings, jewelry,
clothing, linen, dishes, furniture, etc..
There was disputed testimony regarding items the husband
retained and the value of all the items. However, no
appraisals were done on the personal property. It is
impossible based on the evidence presented to the Court to
place a monetary value on the items in question.
The Court determines that equitable distribution will
be accomplished by the division recited herein.
THE TWO SEPARATE REAL ESTATE PARCELS
Two parcels of land adjacent to the marital home were
transferred by the wife's parents and grandmother and deeded
to both the husband and wife. The wife claims these are her
separate property as they were gifts to her. The grandmother
did not testify. The wife's father did and acknowledged that
no gift letter was given. He said the deed was given to
protect the marital residence.
The presumption is that property in joint names is
marital. If the family wanted the gifts to be solely to the
wife, there were effective ways to express and carry out that
intent, viz., the property could have been deeded only in the
wife's name; they could have retained the parcels in their
name and gifted them by wills.
The Court understands that at the time the deeds were
executed, none of the parties had the remotest idea the
marriage might fail. However, by deeding the property to
both, the presumption is that a gift to both was intended.
Case law supports the proposition that a gift to both
parties is marital, and not a separate gift. See BEHRMANN V.
BEHRMANN, 204 AD2d 1076, KALLINS V KALLINS, 170 A.D. 2d 436, and ACKLEY V. ACKLEY, 100 AD2d 153, lv. denied, 63 NY2d 605. In ACKLEY, a 4th department case, the Court said:
"A gift of property to both spouses comes to them by
reason of the marital relation and should be considered as
property belonging to the marital partnership. Thus, wedding
gifts as well as other gifts made to both spouses have been
held to be marital property." citations omitted
It is the Court's decision that the two parcels are
marital property and that the proceeds are to be shared
equally when they are sold.
The husband has been paying the wife maintenance in the
amount of $100 a week during the pendency of this action. He
claims that the wife has no need for any further maintenance.
Both parties appear to be in good health and will be
self-supporting in years to come. The wife recently
completed her degree, and her income has risen. She
currently earns $28,500 and the husband, $43,500. He will be
paying child support of $10,036 annually. However, she will
be supporting three people on $38,836 while he will be
supporting himself on $32,466.
This is a long term marriage where the wife only
recently has begun to earn a decent salary. While it is
hoped that her earnings will continue to rise, she will
either have to buy out the husband's interest in the home or
find a new place for she and the children to reside. The
husband will be paying marital debts, but, these are neither
numerous or insurmountable.
The wife asks for maintenance of $50.00 per week for
eight years. While it appears that the wife will require
some maintenance for a period, eight years is not
justifiable. She has already received maintenance of $100 per
week since November 1993.
This Court orders the husband to pay $50.00 per week
maintenance to the wife for four years, or, remarriage.
This should allow the wife to "get on her feet"
financially and allow her a period of adjustment.
The wife is granted a judgment for arrears in the amount
The husband's request for a distributive award is
denied at this time. Since it is likely that the marital
home will be sold or the husband's interest bought out, a
distributive award is inappropriate.
The wife's total bill is $6,217.50 plus $375 in costs.
The husband says that since he made a fair settlement offer,
there was no need to go to trial. It is a well-settled tenet
in our system of law, however, that everyone is entitled to
his/her day in Court. An offer, no matter how fair, should
not preclude the right to a day in court nor should a party
be penalized for exercising this right.
The husband has already paid the wife's lawyer $1000.00
pursuant to the preliminary order. Even with the improvement
in the wife's finances, the husband is still in a better
financial position than the wife. Furthermore, the fact that
husband contributed to the continued litigation can be taken
into account in setting fees. COTTON V COTTON, 147 Ad2d 436,
ROBINSON V ROBINSON, 166 AD2d 428.
The husband has not always paid support pursuant to the
order of this Court; he cashed in the parties' children's
college funds despite the temporary restraining order; caused
procedural delays by borrowing against funds and not timely
providing discovery nor providing the information about the
college funds. All of this has created additional work for
the wife's attorney.
It is the decision of the Court that the husband pay an
additional $2500.00 in full and final obligation toward the
wife's divorce fee. This amount shall be paid within 30 days
after the sale or refinancing of the marital residence.
The stipulations of March 6 and April 20, 1995 are
hereby incorporated but not merged in the decree of divorce.
After testimony was taken in the hearing but before a
decision was rendered, the wife moved to modify the Court's
order or for a new trial in the alternative. The basis for
the motion was plaintiff's claim that the assessment on the
home was dramatically reduced from $134,000 to $95,800
the day after the trial.
This motion is denied. First of all, the motion was
premature because there was no decision at the time it was
made. One cannot move for a new trial under CPLR §4404 until
the decision or verdict is rendered.
The husband claims that the wife already had knowledge
of the reduction or possible reduction during the hearing.
There was insufficient proof in evidentiary form to
establish with certainty when, and why, the reduction took
The Court further notes that the attorney for plaintiff
should not have written the court ex parte.
Submit order accordingly.
Dated: June 14, 1995
Mayville, New York
Supreme Court Justice