Borzilleri v. Borzilleri

Summary

The Appellate Division, Second Department, dismissed as academic portions of an appeal and cross-appeal concerning maintenance, prospective child support, and specified equitable-distribution issues because of a subsequent stipulation. It affirmed the judgment of divorce insofar as reviewed, including determinations regarding imputed income, classification and distribution of real property and commingled assets, and an award of attorneys' fees. The court also declined to increase the attorneys' fee award.

Holdings

1. The portions of the appeal concerning maintenance, prospective child support after August 16, 2021, educational expenses, the defendant's Charles Schwab account, and the parties' 2018 capital-gains tax liability, as well as the cross-appeal concerning the 2018 capital-gains tax liability, were rendered academic and were dismissed.
2. The Supreme Court providently exercised its discretion in imputing income to the plaintiff based on his past earnings, actual earning capacity, and educational background, imputing $35,000 in annual income to the defendant based on her circumstances, and treating the plaintiff as the noncustodial parent for child-support purposes.
3. The plaintiff was entitled to a credit for the premarital down payment on the Cutchogue property, but he failed to establish that the property retained its separate character or that he was entitled to a credit for premarital appreciation.
4. The plaintiff was not entitled to a separate-property credit for the approximately $268,000 in proceeds from the Brighton property.
5. The Supreme Court providently exercised its discretion in awarding the defendant $40,000 in attorneys' fees, but the record did not support the defendant's request for $100,000.

Questions Presented

1. Whether portions of the appeal and cross-appeal were rendered academic by the parties' August 16, 2021, so-ordered stipulation.
2. Whether the Supreme Court properly imputed income to the parties and determined the plaintiff's child-support obligation.
3. Whether the Cutchogue property and related appreciation retained a separate-property character or became marital property through transfer to a trust and the plaintiff's conduct.
4. Whether the plaintiff was entitled to a separate-property credit for proceeds from the Brighton property that were used to pay down a jointly owned marital mortgage and later commingled with marital funds.
5. Whether the Supreme Court providently exercised its discretion in awarding the defendant $40,000 in attorneys' fees and declining to award her the additional amount requested.

Disposition

affirmed