M.G. v D.G.

[*1] M.G. v D.G. 2016 NY Slip Op 51452(U) Decided on October 6, 2016 Supreme Court, Richmond County DiDomenico, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2016
Supreme Court, Richmond County

M.G., Plaintiff

against

D.G., Defendant.



50***/2013



Attorney for Plaintiff Wife

Ursula Gangemi Esq.

7820 3rd Avenue

Brooklyn, New York 11209

Attorney for Defendant Husband

Adelola Shralynn Dow Esq.

1110 South Avenue

Suite 302

Staten Island, New York 10314
Catherine M. DiDomenico, J.

This action for divorce was commenced on September 24, 2012 with the filing of a Summons and Verified Complaint. These pleadings were answered by Wife via Verified Answer with Counterclaims. At a Preliminary Conference held on July 28, 2014, the parties agreed that (1) each party would waive any claims for maintenance from one another; (2) each party would waive any claim to the other's pensions or annuities; and (3) Husband would take the divorce based on the irretrievable breakdown of the marriage pursuant to Domestic Relations Law Section 170(7). (Jud. Not. 1-4). There are no children born of this marriage. The only issue raised by either party at trial is the equitable distribution of the former marital home located on Seidman Avenue in Staten Island, New York (hereinafter the "Marital Residence").

This limited issue divorce trial was held on November 15, 2015 and May 13, 2016 respectively. Plaintiff Husband testified on his own behalf and called Defendant Wife, and [*2]Melanie M. Marmer, Esquire (real estate attorney) as witnesses. Plaintiff also offered documents into evidence (Pl. Exs.1-12). Defendant Wife testified on her own behalf and called M. M. (her friend) and A. H. (her son) as witnesses. Defendant also offered documents into evidence (Def. Exs. A-K). Written Summations were received from both counsel on August 16, 2016, after which the matter was submitted for decision.

Factual Findings

Many of the relevant facts in this matter are not disputed. With respect to those facts that are disputed, this Court makes the following findings after considering the credibility of the witnesses and reviewing the documentary evidence presented at trial.

The parties met on an on-line dating site and began dating in 2007. After a brief courtship, they moved in together in November of 2008 into a townhouse owned by Wife's mother located on Greenleaf Avenue in Staten Island, New York. At the time the parties first decided to cohabitate, Wife was living with her two sons (then 18 and 16 years old) and Husband was going through a divorce. Husband's divorce from his first Wife was finalized in or around October of 2009. Wife allowed Husband to move in because he was "getting divorced", was looking for a place to live" and because she "felt sorry for him". Space was "tight" in the townhouse, but Wife "made room" for Husband to move in with her and her children.

After Wife's mother passed away, and after receiving the proceeds from her own divorce settlement, Wife searched for a larger home as the parties began planning for a future life together. After considering several properties over several months, Wife decided to purchase the Marital Residence at issue herein for $470,000. The closing was held in January of 2010. At the closing, Wife paid $200,000 as a down payment towards the purchase price. This money represented a large portion of proceeds she had received from her own divorce settlement. In addition to this cash down payment, Wife took out a mortgage, in her name only, for the sum of $270,000 from TD Bank. Husband contributed no money towards the actual purchase price of the property. At the time of purchase Husband was going through his own divorce, and had poor credit. The TD Bank mortgage was taken out in Wife's name alone, and Wife's name was the only name placed on the deed. As Wife was the sole titled owner of record, and the parties were not married, it is undisputed that at the time of purchase the property at issue was Wife's "separate property".

The parties did not move into the Marital Residence immediately. Rather, they decided to continue living in the Greenleaf Avenue townhouse while the Marital Residence was renovated to their specifications. Wife credibly testified that among other home improvements, new siding and windows were installed; the kitchen was remodeled, and flooring was replaced in some areas of the home and basement. Wood was also replaced in the stairway. Husband assisted in the funding, direction, and management of these renovations. To this end, he interviewed and selected contractors, negotiated the price of the work, and facilitated many of the payments. Husband used money that he received from his own divorce settlement to pay for some of the work. While his testimony was unclear, and thus inconclusive, as to the exact amounts that he actually expended, Husband claims to have invested about $114,000 to renovate the house. Wife [*3]admits that some work was actually done by Husband and other work was supervised by him, including work performed by a contractor friend of his, "Bella Contracting." However, Wife disputes the total amount of money contributed by Husband. She believes the figure to be closer to $70,000 than the approximately $114,000 he claims at trial. It is undisputed that at the time Husband began his involvement with these improvements, he was not a titled owner of the property at issue and he was not married to the Defendant.

In February of 2010, approximately one month after the Marital Residence was purchased, the parties got engaged. About four months later, in June of 2010, the parties and Wife's two sons moved into the marital residence. Two months after that they began cohabitating the parties were married on August 9, 2010. While they agreed to marry, the Marital Residence remained titled in Wife's name only, and Husband's was not added to the mortgage.

Soon after their marriage, the parties began fighting. Disputes also erupted between Husband and Wife's two sons. Wife credibly testified that Husband was "controlling" and "argumentative". He criticized her parenting and simply "did not like" her older son. Indeed on the very first night they were all to sleep in the Marital Residence, Husband refused to join them because Wife's brother came to help her sons move into their rooms. Wife credibly testified that while her brother was like a father figure to the boys, Husband deeply resented that relationship, distrusted his brother in law, and objected to his presence in the home. The parties also fought over Husband's adult daughter who Husband claims was made to feel "not welcome" in the marital residence. Another point of contention was the ownership of the property now at issue. Husband repeatedly demanded that the deed to the Marital Residence be modified to include his name to secure the money he contributed to the renovations.

In light of their increasing arguments, and at Husband's insistence, the parties attended marriage counseling. Wife's sons participated in some of the sessions. After going to several different therapists, the parties settled on one provider. According to Wife, the sessions revolved around Husband's demands that his name be added to the deed. Wife credibly testified that Husband threatened to leave her if he was not granted an ownership interest in the property. They also fought over Husband's daughter, and Husband's insistence that she be granted an area of the Marital Residence as her own personal space.

After much pressure from Husband, and in an effort to lessen the conflict between them, Wife agreed to add Husband's name to the deed in or around November of 2011. Husband retained, at his own expense, a real estate lawyer that he had previously used, Ms. Melony Marmer Esq., to prepare a new deed. Ms. Marmer credibly testified at trial that Wife appeared at her office on November 14, 2011 and executed the new deed that listed Husband as a co-owner of the property. Ms. Marmer further testified that she advised Wife that by adding his name to the deed Wife was giving him "certain equity rights" to the property. (Tr. 5/13/16 p.15). Wife met this attorney, who represented Husband, for the first time at the closing. While Husband was added to the deed, he was not added to the mortgage loan relating to the property.

Despite Wife's stated intentions of lessening conflict, the fighting between the parties escalated after Husband was added to the deed. In Wife's words, Husband evolved into a "very [*4]nasty, abusive, manipulative person." When he became angry, he would frequently storm out the door. In December of 2011, one month after the deed was changed, Husband became so enraged at Wife that he threw a wooden chair in her direction. The chair broke on impact with the wall and did not make contact with Wife.

On July 4, 2012, Husband left for work and never came back to the marital residence. About two weeks later, Wife reached out to Husband to talk. They met at a diner. Wife asked Husband to return to the home so they could work on their relationship. Husband refused, and asked to be repaid for the monies he invested in the home. Wife offered him the sum of money, which Husband refused. Husband filed for divorce on September 24, 2012.

During the short period of time the parties resided together (June 2010 to July 2012), Husband contributed approximately $1,100 per month to household expenses, which Wife credibly testified was used to help pay a number of household bills such as utilities, food, and cable television. At that time, the mortgage payment was $1,800 and the monthly household expenses were about $3,000. Wife claims that Husband stopped making any monetary contributions after he left. Without financial contribution from Husband, Wife fell behind on her obligations and was forced to secure a second job in order to prevent a foreclosure. As of the date of her trial testimony, Wife credibly testified that there was approximately $251,000 still owed on the mortgage held by TD Bank.

In support of his claim for equitable distribution of the Seidman Avenue property, Husband argues that he filed this action simply to regain his equitable share of the property that they co-owned. Wife, in opposition to his claim for equitable distribution, argues that she was pressured into adding his name to the deed, and that once his interest was secured, he had no further incentive to stay in the home, or the marriage.

Applicable Law

Domestic Relations Law §236 defines marital property. According to the statute, "marital property" consists of all property acquired by either or both spouses during the marriage, but before the commencement of a matrimonial action, regardless of the form in which title is held. "Separate property" is defined as property acquired before the marriage, or property acquired by bequest, devise or descent, or gift from a party other than the spouse. See Spencer v. Spencer, 230 AD2d 645 (1st Dept. 1996); See also, Bloch v. Bloch. 10 Misc 3d 1058(A) (Sup. Ct. Kings. Cty.)

When determining if property should be deemed marital, or separate, the Court is guided by the general principle that the term "marital property" should be construed broadly, while the term "separate property" should be construed narrowly. See Price v. Price, 69 NY2d 8 (1986); See also, Feldman v. Feldman, 194 AD2d 207 (2d Dept. 1993).

It is undisputed that the Marital Residence was Wife's separate property prior to November 11, 2011 when the deed was modified to include Husband's name. The question raised during this trial is what legal effect, if any, Wife's placement of Husband's name on the [*5]deed had on the nature of that property. When determining the effect of a transfer of separate property, the Court must determine if the titled spouse had "intent to transform the character of the property from separate to marital." See Sherman v. Sherman, 304 AD2d 744 (2d Dept. 2003). If this intent can be established, separate property may be transmuted into marital property, such that the general laws of equitable distribution apply. See Imhof v. Imhof, 259 AD2d 666 (2d Dept. 1999); See also, Macaluso v. Macaluso, 124 AD3d 959 (3rd Dept. 2015). In contrast, if the conveyance of property was intended for some alternate reason, without intent to transform its nature, the property may maintain its separate character. See e.g. Cohen-McLaughlin v. McLaughlin, 132 AD3d 716 (2d Dept. 2015) [deed transfer to marital corporation was intended to protect property from third party claims and thus was not intended to change the character of the property from separate to marital.]

Decision

After consideration of the testimony and evidence offered at trial, this Court finds that Wife's decision to place Husband's name on the deed transmuted her separate asset, to wit, the property located on Seidman Avenue, into a joint marital asset which is subject to the general laws and principles of equitable distribution. See Renga v. Renga, 86 AD3d 632 (2d Dept. 2011); See also, Solomon v. Solomon, 307 AD2d 558 (3rd Dept. 2003). The Court notes that while Wife credibly testified to what evolved into an unhappy, volatile relationship, she did not specifically request a finding that the deed should be set aside on the grounds that it was entered into under duress. Moreover, the Court finds that Wife's proof at trial would be insufficient to establish such a claim in the event that it were properly raised.

After consideration of the totality of the circumstances, the Court finds that Wife has offered no plausible explanation for adding Husband's name to the deed, other than intending to grant him an ownership interest in the marital residence. Moreover, Wife did so knowingly, as the real estate attorney who testified at trial indicated that she warned Wife that she would be granting Husband an equity interest by adding his name to the deed, and Wife willingly did so. Accordingly, "by placing the asset in both parties' names [Wife] evinced an intent to transform the character of the property from separate to marital. See Geisel v. Geisel, 241 AD2d 442 (2d Dept. 1997).

As indicated above, while the Court finds that Wife transmuted her separate property into a marital asset, this does not end the Court's analysis. "Equitable distribution does not necessarily mean equal distribution." Taylor v. Taylor, 140 AD3d 944 (2d Dept. 2016). Rather, this Court has discretion to determine the appropriate distribution of the home after the consideration of a number of statutory factors with a paramount factor being the "fairness" of the ultimate distribution. See Patricia B. v. Steven B. 186 AD2d 609 (2d Dept. 1992); See also, DRL §236(B)(5)(d); also, Scaramucci v. Scaramucci, 140 AD3d 848 (2d Dept. 2016). In so doing, the Court must consider the credits claimed by both parties in relation to the equity value of the property.

Credits

In support of his claim for equitable distribution, Husband argues that he should be allowed to recoup at least $114,000 from the equity in the marital residence, representing his contribution to the renovations done to that property. Husband concurrently argues that he should either be credited $114,000 as an origination credit, or in the alternative, that he should be granted a credit for appreciation to the value of the marital home due to the renovations he funded. At the onset, the Court notes that the theory of "appreciation" is generally applied to claims against separate property. "The increase in the value of separate property remains separate property except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." Kilkenny v. Kilkenny, 54 AD3d 816 (2d Dept. 2008); See also, DRL §236 (B)(1)(d)(3). As this Court has found that this house was transmuted into a marital asset on November 11, 2015 this theory generally would not apply.

In the alternative, under the theory of transmutation credited by the Court herein, Husband requests a one half (50%) share of the net equity in the marital home. However, in addition to this "equitable share," Husband once again requests a "dollar for dollar" recoupment credit in the sum of $114,000 to cover, his alleged "down payment" which took the form of renovations he funded in relation to the home. Husband argues that this is akin to an "origination credit" which is generally warranted when a down payment of separate property is made by a spouse to acquire marital property. See Fields v. Fields, 15 NY3d 158 (2010). In his written summation Husband acknowledges that Wife may be entitled to an origination credit for her $200,000 down payment, and requests that he be granted a similar award in the sum of $114,000.

After consideration of the testimony and evidence offered at trial, the Court finds that Husband's claim to a dollar for dollar "origination credit" must fail. First, it is worth noting that Wife disputes both the extent of his involvement with the renovations, the accuracy of the billing associated with those renovations, and the actual amount of his financial contribution towards the same. Moreover, Wife correctly argues that the law of this State has consistently considered renovations as not warranting a "dollar for dollar" credit. See Price v. Price, 69 NY2d 8 (1986). Instead, the value of a "renovation" or "improvement" is generally considered in accordance with any "increase in market value" (or equity) directly related to those renovations. See Linda D. v. Theo C., 96 AD3d 432 (1st Dept. 2012); See also, Bernholc v. Bornstein, 72 AD3d 625 (2d Dept. 2010). While it is true that the Court has discretion to find that renovations contemporaneous with the purchase of a property are sufficient to establish an origination credit, those renovations should be "inextricably bound" to the acquisition of the property itself. See Babbio v. Babbio, 119 AD3d 474 (1st Dept. 2014). Such is not the case here where all of the repairs were all made after Wife purchased the property.

While Husband has established that he conducted certain renovations, and funded others, he has completely failed to show any increase in the value of the property at issue directly related to those contributions. See Karas-Abraham v. Abraham, 69 AD3d 428 (1st Dept. 2010); See also, Zaretsky v. Zaretsky, 66 AD3d 885 (2d Dept. 2009). As this Court has found that an "increase in value" as opposed to a "dollar for dollar" credit is the proper measure of recovery, Husband's claim for an origination credit fails. To allow Husband a "dollar for dollar" credit, as requested, would theoretically entitle him to more equity than he actually added to the property at issue. Under Husband's theory, every dollar spent on renovations would result in an equivalent [*6]increase in actual value in the home, which is simply not the case. Husband has failed in his burden to show what "equity value" his improvements actually added to the property. See Morales v. Inzerra, 98 AD3d 484 (2d Dept. 2012); See also, Fields v. Fields, 15 NY3d 158 (2010).

While Wife admits that the house has gone up in value, she also could not offer an amount that could be directly attributed to Husband's renovations. Wife testified that the house increased in value from the $470,000 purchase price to the appraisal price of $505,000, which would result in an appreciation figure of approximately $35,000.[FN1] However, this figure could just as easily be attributed to market forces as it could be to Husband's renovations. In fact, Wife argues that many of the "improvements" made by Husband were not professionally done, have depreciated, and will need to be redone. (Tr. 5/13/16 pg.137).

Moreover, even if Husband's claim was found to be legally sustainable, it would still fail for lack of proof at trial. Husband failed to meet his burden of establishing the precise nature and value of the repairs that were the result of his financial contribution. In this regard, his documentary proof was lacking and his testimony vague, self serving and unpersuasive. While Husband unsuccessfully attempted to offer various bills and copies of canceled checks into evidence at trial, many of those documents were not properly certified, and no witness was produced to authenticate them as records made in the regular course of business pursuant to CPLR 4518(a). See McBryant v. Pisa Holdling Corp., 110 AD3d 1034 (2d Dept. 2013); See also, Peerless Ins. Co. v. Milloul, 140 AD2d 346 (2d Dept. 1988). (Tr. 11/16/15 pp.23-28). While certain other bills were properly admitted into evidence, Wife claims that she made payments towards some of those renovations. (Tr. 5/13/16 pp. 100-103). In addition, Wife claims that the amount contained on the bill provided by "Bella Contracting" is suspect as that contractor's brother is Husband's friend.

Wife also seeks an origination credit, however, unlike Husband's claim, the parties' have stipulated that Wife made a down payment of $200,000 towards the initial purchase price of the property at issue. (Tr. 5/13/16 pg.58). It is further undisputed that Wife made this down payment with her separate property funds before the parties were married. Moreover, unlike Husband's renovations, Wife's $200,000 payment resulted in a "dollar for dollar" commensurate increase in the equity of the property at issue. Accordingly, Wife is entitled to an origination credit reflecting the amount of her down payment. See Coffey v. Coffey, 119 AD2d 620 (2d Dept. 1986); See also, Midy v. Midy, 45 AD3d 543 (2d Dept. 2007); Post v. Post, 68 AD3d 741 (2d Dept. 2009).

Equitable Distribution

After considering the testimony and evidence offered by both parties at trial, the Court finds that Wife's conveyance of the Marital Residence by deed transfer from "herself" to [*7]"Husband and herself" presumptively changed the character of the home from separate property to marital property. See Nidositko v. Nidositko, 92 AD3d 653 (2d Dept. 2012). Moreover, as indicated above, the Court has further found that Wife is entitled to an origination credit in the sum of $200,000 for her separate property contribution to the home before it was transmuted into marital property. See Siefried v. Siefried, 296 AD2d 398 (2d Dept. 2002). Accordingly, all that is left to determine is the proper distribution of any equity that remains once Wife's credit is granted. The Court has further found that Husband's claim for an "origination credit" has failed for lack of proof at trial.

After consideration of the factors contained in DRL §236, the Court hereby determines that both parties shall share equally (50% each) in the net equity remaining in the home, as defined below. See Midy v. Midy, 45 AD3d 543 (2d Dept. 2007). In making this determination, this Court has considered, amongst other factors; (1) the short duration of this marriage; (2) that while the parties were "dating" at the time of purchase, Wife chose to purchase the home in her name only (mortgage and deed); (3) the strained circumstances under which Wife felt compelled to add Husband's name to the deed; (4) the contributions made by Husband towards the renovations in the house; (5) the fact that while Wife made all of the mortgage payments on this property, that Husband did contribute some money to marital expenses while he lived in the home; (6) the $200,000 origination credit awarded to Wife herein; and (7) the general financial situation of the parties as set forth in their respective statements of net worth and testimony.

In deciding to distribute the remaining (post credit) equity equally the Court is guided by the principle that equitable distribution should generally be as equal as possible under the circumstances. See Taylor v. Taylor, 140 AD3d 944 (2d Dept. 2016); See also, Davis v. O'Brien, 79 AD3d 695 (2d Dept. 2010). This ruling also protects the long held real property principle that adding a spouses' name to a deed as a tenancy by the entirety (or tenancy in common) has the legal effect of transferring an equal equity interest in the associated property. See Lequerique v. Lequerique, 60 AD3d 504 (1st Dept. 2009); See also, James v. James, 52 AD3d 474 (2d Dept. 2008). Finally, this ruling provides Husband with the ability to receive a fair benefit from the actual market value increase caused by his renovations, despite his failure of proof at trial. Any actual equity increase caused by his renovations and improvements (if any) will be reflected in the final appraisal or sale price of the house.

The most recent appraisal admitted into evidence at trial is as of June 2, 2015. According to this appraisal, the value of the property located on Seidman Avenue is $505,000 (Pl Ex. 11). Wife is hereby ordered to update this report by securing a current market value appraisal of this property within 30 days of this Decision from the same entity that conducted the initial appraisal (Zaloom Appraisal Associates Ltd.). The cost of this appraisal shall be shared equally (50% each) by the parties. The purpose of this updated appraisal is to determine the current market value of the property as the original Court Ordered appraisal is now over a year old. See Opperisano v. Opperisano, 35 AD3d 686 (2d Dept. 2006). Wife is hereby directed to serve Husband's counsel with a copy of the updated appraisal within fourteen (14) days of receipt.

Upon service of the updated appraisal, Wife shall have a period of 60 days to buy Husband out of his equitable interest in the property. His equitable interest shall be defined as [*8]50% of the updated appraised value minus Wife's origination credit of $200,000 minus the $251,000 owed on the mortgage as of the date of Wife's testimony. The Court uses this figure ($251,000) as opposed to the amount outstanding on July 4, 2012 (the date Husband stopped contributing to the household) because it is the only evidence that was offered at trial regarding the amount owed in relation to this property. (Tr. 5/13/16 p. 68). Upon receipt of his equitable share, Husband shall sign a new deed which shall serve to extinguish any further interest he may have in this property. The cost of the deed preparation shall be borne 100% by Wife, with a real estate attorney to be selected by Wife.

In the event Wife elects not to purchase Husband's equitable interest in this property, then the Marital Residence shall be sold on the open market by Wife with a starting price within 10 percent of the value indicated in the updated appraisal ordered above. The real estate broker shall be selected as follows: Husband shall provide Wife with a list of three licensed real estate brokers located on Staten island. Wife shall select one of the brokers from the list. Neither party shall interfere with the sale of the property, and Wife shall not hinder the broker's access to show the property. Both parties will be required to reduce the asking price in accordance with the recommendations of the selected broker until such time as the house is sold. Husband shall receive his equitable share of the net closing proceeds within 30 days after closing of title. Net proceeds will be determined as indicated above, however all closing costs, and broker commissions will be deducted before the net equity is determined. The remaining proceeds will be equally split between the parties.

Reduction in Mortgage Principal

In addition to the equitable distribution claims addressed at length above, throughout the trial Husband made reference to a claim for the principal pay-down of the mortgage relating to the marital residence. Generally, a party is entitled to claim a credit for any payments made towards the principle of a mortgage obligation referable to a separate property residence. See Kost v. Kost, 63 AD3d 798 (2d Dept. 2009).

In support of this claim Husband offered testimony, and Wife agreed, that he paid approximately $1,100 a month towards expenses in the Marital Residence since January of 2010. However, Wife credibly testified that this money was not utilized to pay the mortgage, but instead was apportioned to utilities, of which it was insufficient to cover even half. (Tr. 11/16/15 pg.16). While Husband claims in his summation that he intended this money to be attributed to the mortgage, he testified at trial that the purpose of the money was for "household bills" "including the "mortgage, heat, electric, cable bill whatever." (Tr. 5/13/16 p.19).

After consideration of the testimony and evidence offered by both parties, the Court finds that Husband failed in his burden of proof to establish the exact amount that he paid towards the mortgage. Husband's non-specific testimony that he paid $1,100 a month to a number of expenses is insufficient to establish the amount actually paid towards mortgage principal. More credible is Wife's claim that while Husband did provide monthly income, that he left it up to her to apportion the same, and that she utilized the money for utilities. (Tr.5/13/16 p.72). As Husband has failed in his basic obligation to establish what amounts, if any, he contributed [*9]towards the an actual reduction in principal, the Court need not delve into the effect of the parties' marriage, and or Husband's name being added to his deed, in relation to a claim for mortgage principal reduction.

Miscellaneous

In addition to her request for equitable distribution of the martial property located on Seidman Avenue, Wife requests a distributive award in the sum of $3,985 representing one half of a Federal and State tax refund that was allegedly obtained during the marriage, but distributed wholly to Husband. While this request is made in her written summation, there is no reference to what happened to the refund in either parties' trial testimony. The only brief reference made regarding taxes by Wife identified that the parties filed jointly, and that they were expecting a combined refund of $7,969. (Tr. 5/13/16 pp. 117-118). However, Wife did not go on to indicate what, if anything, happened in regard to this refund. Accordingly, Wife's claim is hereby denied due to a general failure of proof on the issue. See Fu Kuo Hsu v. Hsuan Hung, 149 AD2d 405 (2d Dept. 1989); See also, Soule v. Soule, 252 AD2d 768 (3rd Dept. 1998).

While Husband's attorney made a reference in her opening statement that he may request counsel fees as part of this trial, no evidence or testimony regarding the same was offered by either party. Accordingly, any claim for counsel fees that may have been alluded to in Husband's opening statement is hereby denied due to a general failure of proof. See Fu Kuo Hsu, Supra.

In his summation, Husband has indicated that he wishes the return of a certain item of personal property, to wit, a painting of two horses. Wife admitted at trial the Husband left some articles of his personal property in the home when he voluntarily vacated that property. (Tr. 5/13/16 pg.116). Accordingly, Wife is hereby directed to package Husband's personal property and provide him with reasonable access to the Marital Residence to retrieve the same pursuant to the terms of this Court's Short Form Order dated May 13, 2016.

Conclusion

The issue of Maintenance was waived by both parties pursuant to Short Form Order dated July 28, 2014 (Jud. Not. 2). The issue of the parties' pensions and retirement benefits was resolved by Short Form Order dated July 28, 2016 (Jud. Not. 1). Now, as all remaining financial issues in this matter have been resolved by this Decision, in compliance with Domestic Relations Law §170(7), and as the parties have agreed by Short Form Order dated July 28, 2014 (Jud. Not. 3) that their marriage has broken down irretrievably for a period of six months, a Judgment of Divorce is hereby granted to Husband. In accordance with this finding, Plaintiff's counsel is hereby directed to submit a Judgment of Divorce, Findings of Fact, and Conclusions of Law consistent with this Decision within 60 days.

Any other issue raised during trial but not specifically decided herein is hereby denied.

This constitutes the Decision of the Court after trial.

Dated: October 6, 2016

______________________________

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court Footnotes

Footnote 1:Wife incorrectly states that the Court ordered appraisal value was $535,000, however a review of Plaintiff's exhibit number 11 reveals that the accurate amount is $505,000.