HENNEBERRY v. BORSTEIN (2011)

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered December 2, 2009, insofar as appealed from as limited by the briefs, awarding defendant a credit for half the carrying charges on the boat, awarding plaintiff the amount of $239,455 as her share of the marital portion of the appreciation on the Ghent, New York, real property (the farm), declining to deem marital plaintiff's debt to ING Capital Advisors, LLC, which is now a judgment in the amount of $903,243, and divide it equally between the parties, valuing the Sutter Securities Account as of the date of trial, awarding plaintiff the amount of $90,500 as half the appreciation on defendant's share of his law practice, and bringing up for review an order, same court and Justice, entered June 25, 2009, which denied plaintiff's motion for attorneys' fees, unanimously modified, on the law and the facts, to deem the ING debt marital and divide it equally between the parties, and to increase the award to plaintiff for her share of the appreciation on the farm from $239,455 to $295,704.88, and otherwise affirmed, without costs. Order, same court and Justice, entered July 16, 2010, which, inter alia, denied plaintiff's motions to hold defendant in contempt and to award her counsel fees as sanctions against defendant for frivolous motion practice, unanimously affirmed, without costs. Appeal from the aforesaid June 25, 2009 order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The record demonstrates that plaintiff did not act in such a way as to place the ING debt outside the parties' “economic partnership” (see Capasso v. Capasso, 129 A.D.2d 267, 293 [1987], lv denied 70 N.Y.2d 988 [1988]; see also Hartog v. Hartog, 85 N.Y.2d 36, 49 [1995] [husband's bonus, earned during course of marriage but paid after commencement of divorce proceedings, is marital property] ). On the contrary, she commenced the arbitration that resulted in the debt largely at defendant's behest. In addition, defendant or his law firm acted as her counsel during the arbitration and was actively involved in hiring counsel to bring a motion to vacate the award and to appeal the denial of that motion.

In the calculation of plaintiff's share of the marital portion of the appreciation of the farm, which defendant acquired before the marriage, the premarital mortgage debt of $150,000 should have been deducted, thereby increasing plaintiff's share by $56,249.88.

We have considered the parties' remaining contentions and find them either improperly raised on appeal or without merit.

M–1929 Virginia Marie Henneberry v. Leon Baer Borstein

Motion to strike brief granted to the extent of requiring defendant to pay half the costs incurred by plaintiff for printing the joint record on appeal.