CARNIOL v. CARNIOL

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

Cathy Berger CARNIOL, Respondent, v. Norman CARNIOL, Appellant.

Decided: September 23, 2002

FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and THOMAS A. ADAMS, JJ. Lowell B. Davis, Carle Place, N.Y. (Harvey A. Schweiger of counsel), for appellant. Goodman, Goodman & Jurist, LLP, Garden City, N.Y. (Howard Jurist of counsel), for respondent.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered March 26, 2001, which, after a nonjury trial, inter alia, (1) awarded the plaintiff a distributive award of $446,754, (2) awarded the plaintiff a judgment for maintenance arrears of $69,200, (3) directed the defendant to pay maintenance of $600 per week for two years, (4) directed him to pay child support to the plaintiff in the sum of $650 per week, (5) directed him to place in escrow with the plaintiff's counsel the sum of $180,000 as security for his obligations pursuant to the judgment, (6) directed that he name the parties' child as the beneficiary of his Charles Schwab IRA account and his TIAA/CREF annuity until her emancipation, and (7) awarded the plaintiff $94,590.23 for counsel fees.

ORDERED that the judgment is modified, on the law, by (1) deleting from the ninth decretal paragraph thereof the sum of $446,754 and substituting therefor the sum of $321,754;  (2) deleting the tenth decretal paragraph thereof directing the defendant to place $180,000 in escrow as security for the payment of his obligations pursuant to the judgment of divorce, and (3) deleting the twenty-second decretal paragraph thereof awarding the plaintiff $94,590.23 for counsel fees;  as so modified, the judgment is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Nassau County, for a hearing in accordance herewith.

 The defendant's contentions that the Supreme Court erred in its calculation of his net worth and in its inclusion of certain assets and funds as marital property are without merit.   Such contentions rest largely upon the Supreme Court's assessment of the defendant's credibility at trial.   As the Supreme Court's determination with respect to issues of credibility should be afforded great deference on appeal (see Cohen v. Cohen, 279 A.D.2d 599, 719 N.Y.S.2d 700), and in consideration of the evidence in the record, we perceive no reason to disturb the Supreme Court's findings with respect to the calculation of the defendant's net worth or its classification of certain assets and funds as marital property.

The Supreme Court providently exercised its discretion in directing the defendant to name the parties' child as the sole beneficiary of his Charles Schwab IRA account and TIAA/CREF annuity and to provide a life insurance policy for the benefit of the plaintiff and the child until the child's emancipation (see Domestic Relations Law § 236[B][8][a];  Grenier v. Grenier, 210 A.D.2d 557, 620 N.Y.S.2d 139).

 The Supreme Court did err, however, in including the appreciation in value of the marital residence as marital property.   The defendant purchased the home before the marriage and, as such, the home was his separate property.   Since the plaintiff failed to establish that the increase in the valuation of the marital home of $250,000 was attributable to the efforts of either party, and since there is no causal connection between her contributions to the marital relationship and the appreciation of the marital home, the amount of such appreciation should be deemed separate property (see Mahlab v. Mahlab, 143 A.D.2d 116, 531 N.Y.S.2d 580;  Shahidi v. Shahidi, 129 A.D.2d 627, 630, 514 N.Y.S.2d 259).   Inasmuch as the marital property was erroneously overvalued by $250,000, the amount of the plaintiff's distributive award is reduced by $125,000 to $321,654.

 It was also error for the Supreme Court to award the plaintiff $94,590.53 in counsel fees without first conducting a full evidentiary hearing with regard to the issue of counsel fees.   Even though the relative financial positions of the parties were thoroughly examined at trial, there is no indication of how the Supreme Court arrived at the figure of $94,590.53 or whether that figure had any relationship to the plaintiff's legal bills.   A hearing, therefore, is necessary as “ ‘a meaningful way of testing the [attorney's] claims relative to time and value’ ” (Sadofsky v. Sadofsky, 78 A.D.2d 520, 521, 431 N.Y.S.2d 594;  see Price v. Price, 113 A.D.2d 299, 309, 496 N.Y.S.2d 455, affd. 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684).   Further, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the defendant to place in escrow with the plaintiff's counsel the sum of $180,000 as security for the payment of his obligations pursuant to the judgment.

The defendant's remaining contentions are without merit.

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