SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1133 

CA 16-00021 

PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

 

PEGGYANN HART, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLES R. HART, DEFENDANT-APPELLANT. 

(APPEAL NO. 2.)

 

MITCHELL LAW OFFICE, OSWEGO (RICHARD C. MITCHELL, JR., OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Oswego County

(Norman W. Seiter, Jr., J.), entered April 1, 2015. The judgment,

inter alia, equitably distributed the marital property of the parties. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the decretal paragraphs

directing equitable distribution of the marital property, and as

modified the judgment is affirmed without costs, and the matter is

remitted to Supreme Court, Oswego County, for further proceedings in

accordance with the following memorandum: In appeal No. 1, defendant

husband appeals from an order in which Supreme Court determined that

he willfully failed to obey two prior orders of the court and that

plaintiff wife willfully failed to obey the provisions of Domestic

Relations Law § 236 (B) (2) (b). The court also suspended judgment

against both parties. In appeal No. 2, defendant appeals from a

judgment of divorce that, inter alia, directed equitable distribution

of the marital property. 

As a preliminary matter, we note that appeal No. 1 must be

dismissed. Defendant does not challenge the finding against him of

willful failure to obey the court’s prior orders (see Abasciano v

Dandrea, 83 AD3d 1542, 1545), and he is not aggrieved by the finding

against plaintiff with respect to her willful failure to obey the

provisions of Domestic Relations Law § 236 (B) (2) (b) (see CPLR 5511;

see also Stewart v Dunkleman, 128 AD3d 1338, 1341, lv denied 26 NY3d

902).

We agree with defendant in appeal No. 2 that the court erred in

classifying as marital property a house he bought prior to the

marriage (hereafter, Seneca Hill Property). It was undisputed that

the Seneca Hill Property was purchased by defendant prior to the
-2- 1133 

CA 16-00021 

marriage, and we conclude that it was not transmuted into marital

property when the parties used it as the marital residence for

approximately two years, or by virtue of defendant having used some of

the sale proceeds therefrom to assist in funding the purchase of a new

marital residence (see Domestic Relations Law § 236 [B] [1] [d] [1];

Ahearn v Ahearn, 137 AD3d 719, 720; Rivera v Rivera, 126 AD3d 1355,

1356). Defendant was therefore entitled to a credit for his separate

property contributions to the marital estate (see Judson v Judson, 255

AD2d 656, 657; see also Maczek v Maczek, 248 AD2d 835, 836-837). We

further conclude, however, that the appreciated value of the Seneca

Hill Property that the court determined to be attributable to the

contributions of plaintiff should have been classified as marital

property (see Robinson v Robinson, 133 AD3d 1185, 1187; Macaluso v

Macaluso, 124 AD3d 959, 961). We thus vacate the decretal paragraphs

of the judgment directing equitable distribution of the marital

property, and we remit the matter to Supreme Court for a

redistribution thereof consistent with our decision. 

We have reviewed defendant’s other contentions in appeal No. 2

and conclude that they are without merit. 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court