        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1312
CA 14-02054
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


JAMES L. WAGNER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ELIZABETH A. WAGNER, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (MELISSA THORE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Livingston County
(Robert B. Wiggins, A.J.), entered January 17, 2014 in a divorce
action. The judgment, inter alia, equitably distributed the marital
property.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the 22nd decretal
paragraph to the extent that it establishes the offset amount between
plaintiff’s maintenance arrears and defendant’s marital debt arrears,
and as modified the judgment is affirmed without costs, and the matter
is remitted to Supreme Court, Livingston County, for further
proceedings in accordance with the following memorandum: Defendant
wife appeals from a judgment of divorce that, inter alia, equitably
distributed marital property and liabilities, and directed certain
spousal maintenance payments and offset amounts. We reject
defendant’s contention that Supreme Court abused its discretion in
determining that the parties’ credit card debt was a marital
liability. “It is well settled that [e]quitable distribution presents
issues of fact to be resolved by the trial court, and its judgment
should be upheld absent an abuse of discretion” (Oliver v Oliver, 70
AD3d 1428, 1428-1429 [internal quotation marks omitted]). “It is also
well settled that trial courts are granted substantial discretion in
determining what distribution of marital property[—including
debt—]will be equitable under all the circumstances” (id. at 1429
[internal quotation marks omitted]; see McKeever v McKeever, 8 AD3d
702, 702-703). “[E]xpenses incurred prior to the commencement of a
divorce action constitute marital debt and should be equally shared by
the parties” (Malachowski v Daly, 87 AD3d 1321, 1322 [internal
quotation marks omitted]). “Where, however, the indebtedness is
incurred by one party for his or her exclusive benefit or in pursuit
of his or her separate interests, the obligation should remain that
party’s separate liability” (Jonas v Jonas, 241 AD2d 839, 840; see
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                                                         CA 14-02054

Oliver, 70 AD3d at 1429; McKeever, 8 AD3d at 703).

     Here, although defendant asserted that plaintiff husband incurred
significant credit card debt without her knowledge, the record
establishes that the debt was not incurred for plaintiff’s exclusive
benefit or in pursuit of his separate interests but, instead, was
incurred for various marital expenditures of which defendant was
aware, including the financing of expenses associated with the
construction of a “dream home” that became the marital residence prior
to the parties’ separation (see McCaffrey v McCaffrey, 107 AD3d 1106,
1108; Evans v Evans, 55 AD3d 1079, 1081; see also Cornish v
Eraca-Cornish, 107 AD3d 1322, 1323-1324). The Matrimonial Referee
(Referee), whose decision and order was incorporated by the court in
the judgment, determined that defendant was “fully invested” in the
credit card expenditures, and that she had “acquiesce[d] to the web of
convoluted credit card obligations created by [plaintiff].” The
Referee also determined that, even assuming that plaintiff had engaged
in misconduct in handling the family finances, defendant had actively
or passively participated in such financial mismanagement and
therefore could not be absolved from responsibility for the credit
card debt (see Oliver, 70 AD3d at 1429). We conclude that the
Referee’s “credibility determinations in this regard must be accorded
great deference” (Evans, 55 AD3d at 1081; see generally Wilkins v
Wilkins, 129 AD3d 1617, 1618). Contrary to defendant’s further
contention, “[t]he court properly considered the factors set forth in
Domestic Relations Law § 236 (B) (5) (d)” and, given the nature of the
credit card debt and defendant’s acquiescence in the expenditures, we
conclude that the court did not abuse its broad discretion in
distributing the debt equally between the parties (Burns v Burns, 70
AD3d 1501, 1503; see Cornish, 107 AD3d at 1324; Evans, 55 AD3d at
1081).

     We reject defendant’s contention that the court abused its
discretion in awarding her durational maintenance of $1,500 per month
for a period of 10 years from the date of her answer. The record
establishes that the court considered the requisite statutory factors,
including defendant’s education, employment history, and ability to
increase her earnings in the future, and properly determined that
defendant was capable of future self-support (see Schmitt v Schmitt,
107 AD3d 1529, 1529; Burns, 70 AD3d at 1503; see also Reed v Reed, 55
AD3d 1249, 1251).

     We agree with defendant, however, that the court abused its
discretion in determining the offset amount between plaintiff’s
maintenance arrears and the interest paid by plaintiff on the marital
debt (see generally Ouziel v Ouziel, 285 AD2d 536, 538). Despite the
existence of an earlier order finding that defendant owed plaintiff
half of the amount of interest he had “actually paid” toward the
marital debt, which would be offset against the amount that plaintiff
owed in maintenance arrears, the court subsequently accepted an email
from plaintiff to his counsel calculating the amount of accrued
interest incurred on defendant’s share of the marital debt as
sufficient proof of the offset amount, which resulted in defendant
owing plaintiff money. We conclude that such an “unauthenticated
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                                                         CA 14-02054

document[] appended to plaintiff’s posthearing submission and not
received in evidence at trial [is] not competent proof and, therefore,
should not have been relied upon by the court” (Murphy v Murphy, 126
AD3d 1443, 1446; see Higgins v Higgins, 50 AD3d 852, 853-854). In any
event, the email failed to establish the interest actually paid by him
(see Murphy, 126 AD3d at 1446). We therefore modify the judgment
accordingly, and we remit the matter to Supreme Court to recalculate
the offset amount by taking into account the amount of interest
plaintiff actually paid on the martial debt.




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
