PONZI v. PONZI (2007)

 In this divorce action, defendant appeals from a judgment and plaintiff cross-appeals from a previously entered “decision and order.”  The latter document did not actually order anything, however, despite Supreme Court's statement that it “shall constitute the Order of the Court,” and no appeal lies from a mere decision (see Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772;  Kuhn v. Kuhn, 129 A.D.2d 967, 514 N.Y.S.2d 284).  We nevertheless exercise our discretion to treat the notice of cross appeal as valid and deem the cross appeal as taken from the judgment (see CPLR 5520[c];  Kimmel v. State of New York, 38 A.D.3d 1155, 831 N.Y.S.2d 629).

 With respect to the appeal, we conclude that the court properly determined that the balance of defendant's U.S. Government Thrift Savings Plan (Savings Plan), with the exception of the amount in the Savings Plan at the time of the marriage, was marital property subject to equitable distribution.  Here, the parties agreed that the amount in the Savings Plan at the time of the marriage was $9,156.87 and was defendant's separate property.  Defendant failed, however, to offer evidence that the appreciation in that separate property resulted solely from passive market forces (see Roehmholdt v. Russell, 272 A.D.2d 938, 939, 712 N.Y.S.2d 709).  Thus, because the appreciation occurred during the marriage, it is presumptively marital property, and defendant failed to overcome the presumption by establishing that the property is separate (see generally Price v. Price, 69 N.Y.2d 8, 17–18, 511 N.Y.S.2d 219, 503 N.E.2d 684;  Parkinson v. Parkinson, 295 A.D.2d 909, 744 N.Y.S.2d 101).

 Contrary to the contention of defendant, the record supports the court's distribution of her pension.  It was within the court's discretion to direct defendant to select a 50% survivor pay-out option for her pension and to direct that plaintiff's share of each periodic payment be calculated as though defendant has selected an option providing for the highest periodic payment during her lifetime so that plaintiff's share of that asset would not be impaired (see Ferriera v. Ferriera, 112 A.D.2d 22, 23, 490 N.Y.S.2d 389;  see also McDermott v. McDermott, 119 A.D.2d 370, 376, 507 N.Y.S.2d 390, appeal dismissed 69 N.Y.2d 1028, 517 N.Y.S.2d 938, 511 N.E.2d 81;  Farsace v. Farsace, 97 A.D.2d 951, 952, 468 N.Y.S.2d 751).  The further contention of defendant that plaintiff's share of her pension should be reduced because she is a federal employee and thus ineligible to receive Social Security benefits is not properly before us.  That contention is improperly raised for the first time in defendant's reply brief (see Turner v. Canale, 15 A.D.3d 960, 790 N.Y.S.2d 347, lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189).  In any event, it is without merit because the record contains evidence that defendant in fact contributes to and is eligible to receive Social Security benefits.

 With respect to the cross appeal, we further conclude that the court's award of maintenance to plaintiff in the amount of $325 per week for a period of five years, which was determined following a thorough analysis of the parties' finances, was not an abuse of discretion (see generally Anderson v. Anderson, 286 A.D.2d 967, 969, 731 N.Y.S.2d 108).  The record establishes that defendant was the primary earner throughout the 10–year marriage, that plaintiff is presently unemployed and receiving a disability pension, that there is a large disparity in the parties' incomes, and that the total amount of plaintiff's pension income and the maintenance award is more than adequate to meet the reasonable needs of plaintiff, in view of his predivorce standard of living (see Hartog v. Hartog, 85 N.Y.2d 36, 52, 623 N.Y.S.2d 537, 647 N.E.2d 749).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: