RIZZUTO v. RIZZUTO

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

John B. RIZZUTO, Jr., Appellant, v. Mary E. RIZZUTO, Respondent.

Decided: May 26, 1998

Before FRIEDMANN, J.P., and GOLDSTEIN, FLORIO and LUCIANO, JJ. Lynn Hanig, P.C., Wappingers Falls, for appellant. Sheila Callahan O'Donnell, Cornwall, for respondent.

In an action for a divorce and ancillary relief, the plaintiff husband appeals from stated portions of an amended judgment of the Supreme Court, Orange County (Bellantoni, J.), dated April 29, 1997, which, inter alia, awarded the defendant wife 50% of the post-separation appreciation in the value of the marital assets.

ORDERED that the amended judgment is affirmed insofar as appealed from, with costs.

 According to Domestic Relations Law § 236(B)(5)(c) “Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties”.   However, it is axiomatic that equitable distribution does not necessarily mean equal distribution (see, Greenwald v. Greenwald, 164 A.D.2d 706, 565 N.Y.S.2d 494).   Rather, courts must use flexibility “to mold an appropriate decree because what is fair and just in one circumstance may not be so in another” (Greenwald v. Greenwald, supra, at 713, 565 N.Y.S.2d 494;  Rodgers v. Rodgers, 98 A.D.2d 386, 391, 470 N.Y.S.2d 401).   In the case at bar, the parties were married for 31 years, and during their separation the defendant took care of the maintenance of the home.   Thus, it was not an improvident exercise of the trial court's discretion to award to the defendant 50% of the post-separation appreciation in the value of the marital assets.

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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