Here, the parties share one child. In November 2020, the father petitioned to modify the parties’ parental access arrangement, as set forth in a January 7, 2020 order entered on consent. Under the January 2020 order, the parties were awarded joint legal custody, with residential custody to the mother and parental access to the father twice a week, in four-increments. In his modification petition, the father claimed that when he consented to the terms of the January 2020 order, he was a probationary employee with the Metropolitan Transportation Authority, and as a result, his work schedule was irregular. He stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. He then sought expanded parental access with the child. The Family Court dismissed the petition, without a hearing, without prejudice, on the ground that the father had failed to establish a sufficient change in circumstances to warrant modification of the order. The father appealed.
The Second Department found that the Family Court improperly dismissed the father’s petition. The father’s assertations, which were supported by the necessary threshold evidentiary showing, warranted a hearing to resolve whether the existing parental access arrangement continued to serve the child’s best interests (see Matter of Bodre v. Stimatz, 150 AD3d 1228, 1229; Matter of Hillord v. Davis, 123 AD3d 1126, 1126). The petition is reinstated, and the matter is remanded.
The parties have four children together, the youngest of whom is currently 20 years old. The plaintiff commenced this action in January 2009 for a divorce and ancillary relief. A trial was conducted as to certain issues concerning equitable distribution, maintenance, and child support over 45 nonconsecutive days between May 9, 20211, and May 15, 2014, and thereafter issued a decision after trial dated May 3, 2018. A judgment of divorce dated December 11, 2018, was entered upon the decision. The plaintiff appealed.
The Second Department’s power is as broad here as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind in a close case that the trial court had the advantage of observing the witnesses and hearing the testimony (see Kaufman v. Kaufman, 189 AD3d 31, 56). The lower court providently exercised its discretion in awarding the defendant title to the marital residence and in calculating the plaintiff a 50% interest in that property based upon the value of that property as stipulated to by the parties during the trial of this action in 2012.
Each party here argued to the lower court that they should be awarded title to the marital residence based on their respective emotional ties to the property. In the court’s decision, it explained that it determined to award the defendant title upon consideration of the totality of the circumstances, including the court’s distribution awards with respect to the remainder of the parties’ marital property, and the defendant’s position as custodial parent of the parties’ then-unemancipated child (see Domestic Relations Law § 234; Bauman v Bauman, 132 AD3d 791; Wells v. Wells, 151 AD2d 474; Dayanoff v. Dayanoff, 118 AD2d 679; see also Strohli v. Strohli, 174 AD3d 938, 945). Given that the court determined to award the wife title to the marital residence, rather than direct that the property be sold, the court properly calculated the husband’s interest in the marital residence based upon the value of that property as was stipulated to by the parties at the time of trial (see Domestic Relations Law § 236[B][b]; cf. Marino v. Marino, 183 AD3d 813; Opperisano v. Opperisano, 35 AD3d 686).
However, the Second Department found that the lower court should have awarded the plaintiff credit for separate property funds that he used to purchase and renovate the marital residence (see Philogene v. Delpe-Philogene, 195 AD3d 963; Spencer-Forrest v. Forrest, 159 AD3d 762, 765; Ahearn v. Ahearn, 137 AD3d 719, 720; Patete v. Rodriguez, 109 AD3d 595, 597). The plaintiff’s proof at trial demonstrated that he used $991,416.54 in separate property funds to purchase and renovate the marital residence. The judgment is modified so as to award the plaintiff the sum of $2,133,208.27 for his interest in the marital residence, constituting $991,416.54 in credits for his separate property contribution in addition to $1,141,791.73, which is 50% of the stipulated value of the residence of $3,275,000, as reduced by the amount of the plaintiff’s separate property contribution.
The Second Department found that the lower court properly determined that the defendant was entitled to a distribution award for her contributions during the marriage to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey. However, given the circumstances of this case, a $595,150.59 award, which represents 25% of the appreciation in value of the Deal property as determined by the court, is appropriate. The Second Department concluded that the evidence established at trial demonstrated that the Deal property was worth $750,000 at the time it was inherited by the plaintiff during the parties’ marriage, that the parties performed renovations to the Deal property during the marriage which totaled approximately $300,000, and that the Deal property had significantly appreciated in value during the marriage, such that it was worth $3,600,000 at the time of commencement. However, the evidence also showed that the Deal property was located a mere three lots from the beach in a highly desirable location, and the defendant’s own expert testified that the bulk of the property’s value was attributable to the land itself and not to the improvements thereon. Thus, the judgment is modified so as to reduce the defendant’s award of $1,190,301.18 for her contribution to the appreciation in value of the Deal property as determined by the court, to $595,150.59, representing 25% of that appreciation (see Johnson v. Chapin, 12 NY3d at 466; Weidman v. Weidman, 162 AD3d 720).
The Second Department found that the lower court providently exercised its discretion in awarding the defendant 30% of the appreciated value of the plaintiff’s premarital 33.3% interest in a business known as Madison Maidens. The defendant’s evidence sufficiently established that she made both direct and indirect contributions to this business during the course of the parties’ marriage (see Klestadt v. Klesdat, 182 AD3d 592; Westbrook v. Westbrook, 164 AD3d 939, 942; Katz v. Katz, 153 AD3d 912; Repetti v. Repetti, 147 AD3d 1094, 1098). The court also providently exercised its discretion in awarding the defendant 50% of the plaintiff’s additional 6.67% interest in Madison Maidens, which the plaintiff acquired during the parties’ marriage (see Turco v. Turco, 117 AD3d 719, 721).
The lower court providently exercised its discretion in valuing the income-producing marital property located on Avenue P in Brooklyn, and in awarding the plaintiff the sum of only $807,408.60 for his interest in that property. Here, the court’s valuation utilized the income capitalization approach, and was based upon the net operating income for this property as advanced by the plaintiff’s own expert at trial (see 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 NY 2d 325, 330-331; Matter of Conifer Baldwinsville Assoc. v. Town of Van Buren, 115 AD2d 325, 326, affd 68 NY2d 783). The court providently exercised its discretion in crediting the defendant’s expert in applying a capitalization rate of 7.33%, which was properly based upon that expert’s appraisal of the property at the time of commencement (see Madonna v. Madonna, 265 AD2d 455, 455).
The lower court improvidently exercised its discretion in calculating the defendant’s 50% interest in the marital properly located on 20th Avenue in Brooklyn based upon the valuation figures which relied upon the amount of the outstanding mortgage on that property which existed at the time of trial in 2011. Subtracting the mortgage balance for the 20th Avenue property as of the date of commencement from the value of the property as determined by the court, the net value from which the defendant’s 50% interest should be calculated amounts to $856,985. The judgment is modified so as to award the defendant the sum of $428,492.50 for her 50% interest in the 20th Avenue property.
The lower court providently exercised its discretion in awarding the defendant maintenance in the sum of $5,000 monthly for a period of 18 months. Given the length of the parties’ marriage and the lifestyle they experienced, the age of the parties, the defendant’s lack of work history, and the court’s equitable distribution award, the Second Department declines to disturb the court’s maintenance award.