KRAEGER v. KRAEGER (2000)

Supreme Court, Appellate Division, Second Department, New York.

Barbara KRAEGER, respondent-appellant, v. Richard KRAEGER, appellant-respondent.

Decided: April 24, 2000

WILLIAM D. FRIEDMANN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Lewis H. Lehrman, Mineola, N.Y. (Paula Schwartz Frome of counsel), for appellant-respondent. Mauro & Goldberg, Great Neck, N.Y. (Kenneth Mauro, Christopher Simone, and Timothy R. Capowski of counsel), for respondent-appellant.

In an action for a divorce and ancillary relief, the defendant husband appeals from stated portions of a judgment of the Supreme Court, Nassau County (O'Connell, J.), entered March 15, 1999, which, after a nonjury trial, inter alia, failed to award him maintenance and awarded him only $40,000 of the plaintiff wife's pension, and the plaintiff wife cross-appeals, as limited by her brief, from stated portions of the same judgment, which, inter alia, awarded the defendant husband $62,514.50, representing 50% of the net value of the marital residence.

ORDERED that the judgment is modified by deleting from the seventh decretal paragraph thereof the sum of $62,514.50 and substituting therefor the sum of $5,000;  as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Contrary to the defendant's contentions, the trial court properly considered all of the relevant factors and providently exercised its discretion in denying his request for maintenance (see, Domestic Relations Law § 236[B][6][a];  Hartog v. Hartog, 85 N.Y.2d 36, 51, 623 N.Y.S.2d 537, 647 N.E.2d 749).

 However, the trial court incorrectly determined that the marital residence, initially the plaintiff's separate property, became marital property through contributions jointly made by the parties for its improvement and maintenance.   The increased value of the marital residence, from $68,000 in 1981 to $175,000 at the time this action was commenced, was primarily due to market forces and inflation.   As such, the increased value remains the plaintiff's separate property (see, Hartog v. Hartog, supra, at 46, 623 N.Y.S.2d 537, 647 N.E.2d 749;  Price v. Price, 69 N.Y.2d 8, 17-18, 511 N.Y.S.2d 219, 503 N.E.2d 684;  Feldman v. Feldman, 194 A.D.2d 207, 215, 605 N.Y.S.2d 777;  see also, Goldman v. Goldman, 248 A.D.2d 590, 591, 670 N.Y.S.2d 521).   The improvements made to the house, which for the most part are more properly characterized as necessary maintenance rather than capital improvements, added only $10,000 in actual value.   Since the defendant contributed to these improvements through both monetary and in-kind contributions, he is entitled to distribution of one-half of that amount.

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.