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

1238
CA 13-00478
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


PATRICIA M. SUPPA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANK J. SUPPA, DEFENDANT-APPELLANT.


GETNICK, LIVINGSTON, ATKINSON & PRIORE, LLP, UTICA (THOMAS L. ATKINSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

THOMAS F. O’BRIEN, CLINTON, FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Oneida County (Joan
E. Shkane, A.J.), entered December 3, 2012 in a divorce action. The
judgment, among other things, dissolved the marriage between the
parties and determined the equitable distribution of the marital
assets.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: On appeal from a judgment of divorce that, inter
alia, distributed marital property, defendant contends that Supreme
Court erred in finding that he committed fraud because the court
failed to set forth any basis for that finding. We reject that
contention. The basis for that finding is set forth in the court’s
findings of fact, which are supported by the record, i.e., that
defendant agreed to add plaintiff’s name to his bank accounts
containing a certain amount of money in exchange for plaintiff adding
his name to the deed of her separate property, but that defendant
withdrew those funds from the bank accounts the following week. While
we agree with defendant that the court erred in considering whether to
impose a constructive trust because defendant did not seek that
remedy, we reject his contention that the court’s decision on
equitable distribution was flawed as a result of its mere
consideration of such a remedy.

     Contrary to defendant’s contention, the court’s valuation of the
marital home was appropriate. The value was within the range of
values provided by the parties’ experts (see generally Atwal v Atwal
[appeal No. 2], 270 AD2d 799, 799, lv denied 95 NY2d 761; Francis v
Francis, 262 AD2d 1065, 1066). Inasmuch as defendant did not
establish that the value of the marital home increased as a result of
his work on the property, the court did not err in failing to provide
defendant with a credit for that work (see Vanyo v Vanyo, 79 AD3d
                                 -2-                          1238
                                                         CA 13-00478

1751, 1751-1752; Juhasz v Juhasz, 59 AD3d 1023, 1024-1025, lv
dismissed 12 NY3d 848). In addition, the court properly held that
defendant did not establish that the cost of the improvements to the
home were made from separate as opposed to marital funds (see Reed v
Reed, 55 AD3d 1249, 1250). Indeed, defendant testified that the
household expenses were paid from one account and that at least some
of plaintiff’s income as well as his income was deposited in that
account. The court credited defendant with the down payment he made
on the house from his separate property, but properly declined to
credit defendant with his payment toward the closing costs because
those expenses were not a part of the home’s value (see generally
Mirand v Mirand, 53 AD3d 1149, 1150).

     The court properly exercised its discretion in awarding plaintiff
approximately half the amount of her counsel fees. Defendant contends
that plaintiff had enough income and assets to pay her own counsel
fees, but we note that there is no requirement that a party must
demonstrate an inability to pay (see DeCabrera v Cabrera-Rosete, 70
NY2d 879, 881). Indeed, defendant failed to rebut the presumption
that the less monied spouse is entitled to counsel fees (see Domestic
Relations Law § 237 [a]; Leonard v Leonard, 109 AD3d 126, 129-130).
The circumstances of the case, including the relative merit of the
parties’ positions, support the award (see Blake v Blake [appeal No.
1], 83 AD3d 1509, 1509; see generally DeCabrera, 70 NY2d at 881). We
have considered defendant’s remaining contentions and conclude that
they are without merit.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
