State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 519833 

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KAREN BUCHANAN,

Respondent,

v MEMORANDUM AND ORDER

JAMES BUCHANAN,

Appellant.

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Calendar Date: September 17, 2015

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

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

Kevin P. Flynn, Elmira, for respondent.

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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
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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]).
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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.
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ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court