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

1094
CA 15-00286
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


STEFKA FERREL, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER J. FERREL, DEFENDANT-APPELLANT.
------------------------------------------------
CHRISTOPHER J. FERREL, THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

ANDREW FERREL, THIRD-PARTY DEFENDANT-RESPONDENT.


KUSTELL LAW GROUP, LLP, BUFFALO (CARL B. KUSTELL OF COUNSEL), FOR
DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT.

VENZON LAW FIRM PC, BUFFALO (CATHARINE M. VENZON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

JAMES P. RENDA, BUFFALO, FOR THIRD-PARTY DEFENDANT-RESPONDENT.

EDWARD J. SNYDER, ATTORNEY FOR THE CHILD, WEST SENECA.


     Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered May 21, 2014 in a divorce action. The
judgment, inter alia, directed plaintiff to make a distributive award
to defendant.

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

     Memorandum: Defendant-third-party plaintiff (defendant) appeals
from a judgment of divorce that, inter alia, distributed marital
property. Supreme Court properly determined that none of the funds in
the accounts of the parties’ children, i.e., third-party defendant and
his minor sibling, are marital property subject to distribution (see
Hutchings v Hutchings, 155 AD2d 971, 972; cf. Wortman v Wortman, 11
AD3d 604, 606). Contrary to defendant’s contention, we conclude that
“the court properly exercised its broad discretion in making an
equitable distribution of the marital property” (Krolikowski v
Krolikowski, 110 AD3d 1449, 1450). In making that distribution, the
court properly accorded respect to “[t]he parties’ choice of how to
spend funds during the course of the marriage” and declined to
“second-guess the economic decisions made during the course of [the]
                                 -2-                          1094
                                                         CA 15-00286

marriage” (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421; see Kessler
v Kessler, 118 AD3d 946, 948). The court did not abuse its discretion
in denying defendant’s request for counsel fees. Contrary to
defendant’s contention, the record contains no evidence that plaintiff
engaged in dilatory or otherwise improper conduct during the course of
the litigation (see Blake v Blake [appeal No. 1], 83 AD3d 1509, 1509).
Finally, we note that plaintiff’s cross appeal from the judgment was
deemed abandoned and dismissed pursuant to 22 NYCRR 1000.12 (b), and
thus her contention that the court abused its discretion in denying
her request for counsel fees is not properly before us.




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
