BERGAM v. DINERMAN (2026)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Kings County (Cheryl J. Gonzales, J.), dated March 20, 2024.  The judgment of divorce, upon a decision of the same court (Delores J. Thomas, J.) dated March 20, 2023, made after a nonjury trial, inter alia, (1) directed the defendant to pay child support arrears in the sum of $142,497.36, (2) deemed a certain investment account marital property subject to equitable distribution, to be divided equally between the parties, (3) directed the defendant to pay the plaintiff $97,000 of the parties' marital credit card debt, and (4) declined to award the defendant a credit for certain utility payments and repairs made for the marital residence.

ORDERED that the appeal from so much of the judgment of divorce as declined to award the defendant a credit for certain utility payments and repairs made for the marital residence is dismissed, without costs or disbursements;  and it is further,

ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof directing the defendant to pay child support arrears in the sum of $142,497.36, and substituting therefor a provision directing the defendant to pay child support arrears in the sum of $84,350.89;  as so modified, the judgment of divorce is affirmed insofar as reviewed, without costs or disbursements.

The parties were married on July 2, 1988, and have three children who are now all emancipated.  On May 30, 2013, the plaintiff commenced this action for a divorce and ancillary relief.  After a nonjury trial occurring over nonconsecutive dates in 2016 and 2017, the Supreme Court issued a decision dated March 20, 2023, and a judgment of divorce dated March 20, 2024, was entered.  The judgment of divorce, inter alia, directed the defendant to pay child support arrears in the sum of $142,497.36, deemed a certain investment account marital property subject to equitable distribution, to be divided equally between the parties, directed the defendant to pay the plaintiff $97,000 of the parties' marital credit card debt, and declined to award the defendant a credit for certain utility payments and repairs made for the marital residence.

“The proceeds from an inheritance are separate property” (Sinnott v. Sinnott, 194 A.D.3d 868, 871, 149 N.Y.S.3d 441;  see Domestic Relations Law § 236[B][1][d][1];  Renck v. Renck, 131 A.D.3d 1146, 1148, 17 N.Y.S.3d 431).  However, “ ‘[w]here separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property’ ” (Torkin v. Susac, 236 A.D.3d 1082, 1086, 230 N.Y.S.3d 647, quoting Glessing v. Glessing, 212 A.D.3d 783, 784, 181 N.Y.S.3d 650;  see Candea v. Candea, 173 A.D.3d 663, 666, 104 N.Y.S.3d 637).  “To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and [was commingled] only as a matter of convenience, without the intention of creating a beneficial interest” (Wen Wen Sun v. Ti Zhou, 243 A.D.3d 735, 738, 244 N.Y.S.3d 724 [internal quotation marks omitted];  see Kirshner v. Kirshner, 228 A.D.3d 923, 926, 214 N.Y.S.3d 425).

Here, the Supreme Court properly determined that the defendant failed to overcome the presumption that a Scottrade account ending in 2253, where he deposited property he inherited, was marital property subject to equitable distribution.  As the defendant failed to overcome the presumption that the account was marital property, the court properly determined that the account was marital property subject to equitable distribution and providently exercised its discretion in directing that it be divided equally between the parties (see Weiss v. Nelson, 196 A.D.3d 722, 725, 152 N.Y.S.3d 143).  Similarly, the defendant failed to demonstrate that he detrimentally relied on the plaintiff's alleged agreement that the inherited property was separate property (see Schwartz v. Miltz, 77 A.D.3d 723, 725, 909 N.Y.S.2d 729).

“While ‘[e]xpenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt,’ ‘[e]xpenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses' ” (Bari v. Bari, 200 A.D.3d 835, 839, 161 N.Y.S.3d 97, quoting Epstein v. Messner, 73 A.D.3d 843, 845, 900 N.Y.S.2d 454).  “However, the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action, and liability for the payment of marital debts need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law § 236(B)(5)(d)” (id. [internal quotation marks omitted];  see Minervini v. Minervini, 152 A.D.3d 666, 668, 58 N.Y.S.3d 568;  Lewis v. Lewis, 6 A.D.3d 837, 839–840, 775 N.Y.S.2d 387).  “Where, as here, the determination as to equitable distribution has been made after a nonjury trial, the evaluation of the credibility of the witnesses and the proffered items of evidence is committed to the sound discretion of the trial court, and its assessment of the credibility of witnesses and evidence is afforded great weight on appeal” (Morales v. Carvajal, 153 A.D.3d 514, 515, 60 N.Y.S.3d 228;  see Turco v. Turco, 117 A.D.3d 719, 722, 985 N.Y.S.2d 261;  Franco v. Franco, 97 A.D.3d 785, 786, 949 N.Y.S.2d 146;  Schwartz v. Schwartz, 67 A.D.3d 989, 990, 890 N.Y.S.2d 71).  Here, the Supreme Court providently exercised its discretion in finding the defendant responsible for 50% of the plaintiff's credit card debt used for expenses for the children.

“ ‘The Child Support Standards Act [ (CSSA) ] [Domestic Relations Law § 240(1–b) ] sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling’ known as the statutory cap” (Munsterman v. Munsterman, 227 A.D.3d 1004, 1006, 213 N.Y.S.3d 336, quoting Matter of Butta v. Realbuto, 214 A.D.3d 973, 974, 185 N.Y.S.3d 785;  see Domestic Relations Law § 240[1–b] ).  “Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both” (Munsterman v. Munsterman, 227 A.D.3d at 1006, 213 N.Y.S.3d 336 [internal quotation marks omitted] ).  “However, the court ‘must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap’ ” (id., quoting Matter of Butta v. Realbuto, 214 A.D.3d at 975, 185 N.Y.S.3d 785).

Here, the Supreme Court calculated the parties' incomes pursuant to the CSSA and awarded child support based on the parties' total income, which exceeded the statutory cap.  However, the court failed to provide any rationale for including income in excess of the statutory cap, such that it did not set forth a sufficient basis for its determination to calculate child support based on combined parental income exceeding the statutory cap (see Matter of Butta v. Realbuto, 214 A.D.3d at 975, 185 N.Y.S.3d 785;  cf.  Varnit v. Varnit, 233 A.D.3d 917, 922, 224 N.Y.S.3d 503).  In any event, on the record before us, we see no basis to calculate child support arrears based upon income exceeding the statutory cap.  Therefore, utilizing a statutory income cap of $143,000, which was the income cap during the trial in this matter, and using the parties' adjusted CSSA incomes of $106,805 for the plaintiff and $134,771 for the defendant, we determine that the amount owed by the defendant in child support arrears pursuant to the CSSA is $84,350.89 based on 22 months of child support with two unemancipated children and 42 months of child support with one unemancipated child.  Accordingly, in the interest of efficiency and judicial economy (see Matter of Glick v. Ruland, 185 A.D.3d 926, 929, 128 N.Y.S.3d 652;  Matter of Peddycoart v. MacKay, 145 A.D.3d 1081, 1085, 45 N.Y.S.3d 135), rather than remitting the matter to the Supreme Court, Kings County, we modify the judgment of divorce to direct the defendant to pay child support arrears in the sum of $84,350.89 instead of the initial award of $142,497.36.

Finally, the appendix on appeal is insufficient to determine whether the Supreme Court properly declined to award the defendant a credit for certain utility payments and repairs made for the marital residence, as relevant motion practice was not included in the appendix.  “ ‘An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal’ ” (Daniels v. Donohue, 137 A.D.3d 1072, 1072, 26 N.Y.S.3d 888, quoting Matter of Passalacqua, 31 A.D.3d 648, 648, 819 N.Y.S.2d 100;  see CPLR 5528[a][5] ).  “Where, as here, omissions from the appendix inhibit the court's ability to render an informed decision on the merits of the appeal, dismissal of that portion of the appeal is the appropriate disposition” (Kumar v. Chander, 149 A.D.3d 709, 712, 51 N.Y.S.3d 177 [citations and internal quotation marks omitted] ).  Thus, the defendant's appeal from so much of the judgment of divorce as declined to award him a credit for certain utility payments and repairs made for the marital residence must be dismissed.

The plaintiff's remaining contention is without merit.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.