Hofmann v Hofmann

Hofmann v Hofmann 2017 NY Slip Op 07788 Decided on November 9, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 9, 2017
Manzanet-Daniels, J.P., Andrias, Gische, Kern, Singh, JJ.
4912N 312822/15

[*1] Philip A. Hofmann, Plaintiff-Respondent,

v

Dina F. Hofmann, Defendant-Appellant.

The McPherson Firm, PC, New York (Laurie J. McPherson of counsel), for appellant.

Garr Silpe, P.C., New York (Steven M. Silpe of counsel), for respondent.

Order, Supreme Court, New York County (Louis Crespo, Special Referee), entered February 2, 2017, which, to the extent appealed from, denied defendant wife's cross motion for certain relief with respect to the Hofmann 2012 Family Trust (Trust), and determined that any claims related to assets of the trust could not be asserted as equitable distribution claims in the divorce action, unanimously affirmed, without costs.

The motion court properly determined that the wife's requests for relief concerning the Trust could not be determined in the divorce action since the trust assets were not marital property subject to equitable distribution. It is undisputed that the wife voluntarily transferred her interest in the parties' Michigan house to the husband to be held in the irrevocable family Trust, with the house as the Trust's main asset. Further, the wife was fully aware of the specific terms of the Trust, as evidenced by her notarized signature on the Trust agreement. In general, trust assets are not considered marital property subject to equitable distribution where, as here, the parties are not trustees and have relinquished control over the trust assets (see Markowitz v Markowitz, 146 AD3d 872, 873 [2d Dept 2017]; Stewart v Stewart, 133 AD3d 493, 494-495 [1st Dept 2015], lv denied 26 NY3d 919 [2016]).

We have considered the wife's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 9, 2017

CLERK