                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    519833
________________________________

KAREN BUCHANAN,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

JAMES BUCHANAN,
                    Appellant.
________________________________


Calendar Date:    September 17, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                              __________


     Robert A. Groff Jr., Horseheads, for appellant.

     Kevin P. Flynn, Elmira, for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (O'Shea, J.),
entered July 8, 2014 in Chemung County, ordering, among other
things, equitable distribution of the parties' marital property,
upon a decision of the court.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 1985 and have three emancipated
children. The wife moved out of the marital home in May 2011 and
commenced this action in May 2012 seeking a divorce on the ground
of irretrievable breakdown. At that time, the wife was employed
and earned a gross income of approximately $40,000 per year. The
husband worked as a plumber for most of his adult life but was
unemployed and was not receiving unemployment insurance benefits
at the time of the divorce proceedings.

     In September 2014, Supreme Court granted the parties a
                               -2-                519833

divorce by issuing a decision and order and a subsequent
judgment, wherein the court, among other things, ordered the
equitable distribution of the parties' marital property. As is
relevant, the court held that the marital home should be sold,
per an agreement between the parties, and the proceeds used to
pay any outstanding taxes, mortgage, liens and other expenses
related to the property, and the remainder thereof should be
split between them. The court further held that an annuity
cashed in by the husband was marital property,1 and that the wife
was entitled to approximately half of what that annuity would
have been worth had the husband waited until the relevant
mandated retirement age to collect the annuity. The court
further determined that, based upon the evidence submitted, the
husband was entitled to a credit in the amount of $486.61 for
expenses related to his upkeep of the marital residence. The
husband now appeals,2 and we affirm.

      Supreme Court has "'substantial discretion'" to fashion
equitable distribution of marital property3 "'based on the
circumstances of each case, and the determination will not be
disturbed absent an abuse of discretion or failure to consider
the requisite statutory factors'" (Vertucci v Vertucci, 103 AD3d
999, 1001 [2013], quoting Williams v Williams, 99 AD3d 1094, 1096
[2012]; see Domestic Relations Law § 236 [B] [5] [d]).
Initially, Supreme Court's factual findings illustrate that it
considered the requisite statutory factors (see Noble v Noble, 78
AD3d 1386, 1387 [2010]; Rosenkranse v Rosenkranse, 290 AD2d 685,


     1
        Although the record is not entirely clear on this point,
the husband appears to have accepted a lump-sum payment in
exchange for giving up the future annuity payments.
     2
        We exercise our discretion and treat the husband's
premature appeal from the decision and order as a valid appeal
from the judgment (see Quarty v Quarty, 96 AD3d 1274, 1275 n 1
[2012]; Alessi v Alessi, 289 AD2d 782, 782-783 [2001]).
     3
        The husband concedes that the entirety of the annuity was
earned during the course of the marriage (see Domestic Relations
Law § 236 [B] [1] [c]; Keil v Keil, 85 AD3d 1233, 1235 [2011]).
                              -3-                 519833

686 [2002]). Turning to the record evidence relating to the
husband's specific contentions, both parties testified that they
shared marital assets throughout the marriage and maintained
joint accounts from which they paid the mortgage payment and
other household expenses. The wife testified that she primarily
managed the funds for the household and deposited her monthly
paycheck into either the parties' joint checking account or into
the savings account from which she paid the mortgage, and that
she paid all necessary expenses up until her departure from the
marital home in May 2011. The husband testified that, while he
was unemployed, he contributed to the household expenses with
money he received from unemployment payments, any side jobs that
he worked and a life insurance policy that he inherited following
his father's death in 2010. Further, the court credited the
wife's testimony that she did not consent to the early receipt of
funds in exchange for giving up the annuity, which triggered
penalties for such a transaction that reduced the amount actually
received.

      We disagree with the husband that Supreme Court was
required to pass on half of the losses incurred by his unilateral
choice to sell the annuity early. The court did not abuse its
discretion in awarding the wife approximately half of the value
of the annuity before penalties and taxes related to its early
sale (see Altieri v Altieri, 35 AD3d 1093, 1095 [2006]; Galachiuk
v Galachiuk, 262 AD2d 1026, 1027 [1999]).

      We also reject the husband's argument that he was entitled
to additional credits for payments that he alleges that he made
toward the mortgage and upkeep of the marital residence prior to
the commencement of this action. The husband did not supply
documentary evidence that established that any payments that he
now claims should have been credited as reducing marital debts
went to reduce the mortgage on the marital home or to otherwise
improve it, and we defer to Supreme Court's decision not to
credit the husband's testimony on the matter given the absence of
such documentary evidence (see generally Vertucci v Vertucci, 103
AD3d at 1001). The husband's remaining contentions are also
without merit.

     Peters, P.J., Garry and Rose, JJ., concur.
                        -4-                  519833

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
