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

199
CA 14-00350
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


LYNN RIVERA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL L. RIVERA, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (LAURA EMERSON OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Shirley
Troutman, J.), entered August 2, 2013 in a divorce action. The
judgment, among other things, equitably distributed the marital
property.

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

     Memorandum: Defendant husband appeals from a judgment of divorce
that, inter alia, directed him to pay maintenance and distributed the
marital assets. We reject defendant’s contention that the parties had
ceased functioning as an economic partnership by the end of 2004, and
that Supreme Court therefore erred in awarding plaintiff wife any
interest in defendant’s pension earned thereafter. Although
defendant’s employment resulted in the parties residing separately,
there is no dispute that defendant remained plaintiff’s sole source of
financial support, that the parties shared joint bank accounts, and
that they continued to file joint tax returns through the 2011 tax
year. Indeed, in 2008, the parties made a down payment on a new
marital home to be constructed in Virginia. 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’ ” (Prasinos v Prasinos, 283 AD2d 913, 913; see also Oliver
v Oliver, 70 AD3d 1428, 1428-1429). We perceive no reason on this
record to disturb the court’s determination (see generally Gasiorowski
v Gasiorowski, 267 AD2d 557, 557-558, lv denied 94 NY2d 762). We note
that inasmuch as plaintiff did not appeal from the judgment, her
contention that the court erred in awarding her a diminished share in
defendant’s pension after 2007 is not properly before us (see Hecht v
City of New York, 60 NY2d 57, 63).

     Contrary to defendant’s contention, plaintiff’s separate
property, in the form of a single family home she owned in Louisiana
                                 -2-                           199
                                                         CA 14-00350

prior to marriage, was not transmuted into marital property when she
used it to assist in funding the purchase of a series of marital
residences. “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 . . . , including any contributions that are
directly traceable to separate property” (Juhasz v Juhasz, 59 AD3d
1023, 1024, lv dismissed 12 NY3d 848; see also Salvato v Salvato, 89
AD3d 1509, 1510, lv denied 18 NY3d 811). We reject defendant’s
contention that he was entitled to a credit for roofing improvements
made to plaintiff’s Louisiana residence, which were allegedly paid for
out of his income. Defendant failed to establish that the funds spent
on the roof “added value to the residence apart from the appreciation
in value resulting from market forces over the period of ownership
and, if so, the amount by which the value of the property was
increased” (Juhasz, 59 AD3d at 1024-1025).

     We reject defendant’s further contention that the court abused
its discretion in setting the amount of maintenance. “The record
establishes that the court appropriately considered [plaintiff’s]
‘reasonable needs and predivorce standard of living in the context of
the other enumerated statutory factors’ set forth in Domestic
Relations Law § 236 (B) (6) (a)” (Frost v Frost, 49 AD3d 1150, 1151,
quoting Hartog v Hartog, 85 NY2d 36, 52).

     Finally, contrary to defendant’s contention, we conclude that the
award of counsel fees to plaintiff is reasonable and does not
constitute an abuse or improvident exercise of the court’s discretion
(see Gelia v Gelia, 114 AD3d 1263, 1264).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
