         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1253
CA 11-00504
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


ALLEN J. SWETT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SHERYL A. SWETT, DEFENDANT-APPELLANT.


BARTON, SMITH & BARTON, LLP, ELMIRA (CHRISTOPHER A. BARTON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WELCH & ZINK, CORNING (COLLEEN G. ZINK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a second amended decree of the Supreme Court, Steuben
County (Alex R. Renzi, J.), entered May 6, 2010 in a divorce action.
The second amended decree, among other things, determined the
equitable distribution of the marital property.

     It is hereby ORDERED that the second amended decree so appealed
from is unanimously modified on the law by directing in the third
decretal paragraph concerning the marital residence that defendant is
entitled to a credit of $13,613 before the remaining value of the
marital residence is subject to equitable distribution, such that
within 30 days of the date of this order defendant shall pay to
plaintiff the sum of $13,343.50, representing his equity in the
marital residence, in exchange for plaintiff’s execution of a
quitclaim deed relinquishing the marital residence to defendant, and
as modified the second amended decree is affirmed without costs.

     Memorandum: Defendant appeals from a second amended decree of
divorce that, inter alia, equitably distributed the parties’ marital
property. Defendant contends that Supreme Court erred in awarding
plaintiff a credit for his nonfinancial contributions to the
appreciated value of a cottage that was purchased by defendant and her
family prior to the marriage. Although defendant presented evidence
that she sold her interest in the cottage to her father shortly after
the marriage, plaintiff presented evidence that the deed was never
modified and that the parties continued to use the cottage in a manner
consistent with the use of property owners. “It is well established
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’ ” (Prasinos v Prasinos, 283 AD2d 913). In light of the
conflicting evidence presented by the parties at trial, the court did
not abuse its discretion in concluding that defendant in fact
maintained a property interest in the cottage after the marriage and
                                 -2-                          1253
                                                         CA 11-00504

that plaintiff was entitled to a credit for his nonfinancial
contributions to the appreciated value thereof (see generally Domestic
Relations Law § 236 [B] [1] [d] [3]; Hartog v Hartog, 85 NY2d 36, 46).

     We reject defendant’s further contention that the court erred in
concluding that certain trust accounts and stock obtained by her
during the marriage were marital property subject to equitable
distribution (see generally Domestic Relations Law § 236 [B] [1] [c]).
“ ‘Property acquired during the marriage is presumed to be marital
property and the party seeking to overcome such presumption has the
burden of proving that the property in dispute was separate
property’ ” (Galachiuk v Galachiuk, 262 AD2d 1026, 1027; see Fields v
Fields, 15 NY3d 158, 162-163, rearg denied 15 NY3d 819). Here,
defendant “ ‘failed to trace the source of the funds [and stock that
she contended were separate property] with sufficient particularity to
rebut the presumption that they were marital property’ ” (Bailey v
Bailey, 48 AD3d 1123, 1124; see Bennett v Bennett, 13 AD3d 1080, 1082,
lv denied 6 NY3d 708). Contrary to defendant’s contention, the court
did not abuse its discretion in awarding counsel fees to plaintiff in
light of the “dilatory or obstructionist conduct” by defendant (Blake
v Blake [appeal No. 1], 83 AD3d 1509; see Johnson v Chapin, 12 NY3d
461, 467, rearg denied 13 NY3d 888; see also McBride-Head v Head, 23
AD3d 1010, 1011).

     We agree with defendant, however, that the court erred in failing
to award her a credit for paying off the mortgage on the marital
residence with her separate property. “It is well settled that a
spouse is entitled to a credit for his or her contribution of separate
property toward the purchase of the marital residence” (Juhasz v
Juhasz, 59 AD3d 1023, 1024, lv dismissed 12 NY3d 848; see Fields, 15
NY3d at 166). Here, it is uncontested that the money used to pay off
the mortgage on the marital residence shortly after the parties’
marriage was defendant’s separate property, and thus defendant is
entitled to a credit in that amount prior to the equitable
distribution of the marital residence (see Fields, 15 NY3d at 166;
Juhasz, 59 AD3d at 1024; Mirand v Mirand, 53 AD3d 1149, 1150; Chernoff
v Chernoff, 31 AD3d 900, 903). We therefore modify the second amended
decree accordingly.




Entered:   November 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
