PAMELA J. HAYDEN,

Plaintiff,

-vs- Index #H-08313

LARRY P. HAYDEN,

Defendant.

ANTHONY J. SPANN, P.C.

(James J. Spann, Esq.

of Counsel) for Plaintiff

MARGARET LOGAN NOONAN, ESQ.

for Defendant

MEMORANDUM DECISION

GERACE, J.

An equitable distribution trial was held in this matter

on April 20 and 21, 1995, on issues unresolved by stipulation

of the parties.

The parties were married on 10/4/74 and have two

children born in 1979 and 1981. Custody and visitation

issues have previously been settled.

The plaintiff is age 40; the defendant, age 41. Service

of summons was on 11/4/93. A divorce was granted on 3/6/95.

EXCLUSIVE POSSESSION

The wife would like to remain in the home until the

youngest child graduates from high school in approximately

four years. The husband opposes this.

The marital residence is a 5 bedroom home situated on

over 3 acres. Currently the wife lives there with the 2

children. The husband is living in a trailer and claims he

can not get a loan while his name remains on the mortgage.

The wife did not show any need to continue to reside in

the marital home or any special circumstances other than the

children's understandable desire to remain in the home until

the youngest graduates from high school.

For the sake of stability, the Courts favor solutions

that permit children, whose lives are already impacted by the

parents marital disputes, to live in the marital home; but,

the financial situation of the parties must also be

considered.

The husband is currently unable to purchase a home for

himself for two reasons: lack of funds, and, inability to

qualify for a mortgage while he is committed on the mortgage

on the marital residence.

No evidence was produced to show that the rental or

mortgage payments for a smaller home would be equal to or

expensive than the cost to retain the marital residence.

Nor was there evidence of physical abuse or other

circumstances justifying exclusive possession regardless of

economic factors.

Case law supporting exclusive possession is generally

based on the showing that there is enough money from other

sources for both parties to live in a manner that would not

grossly curtail their former lifestyle. See LAURER V LAURER,

145 AD2d 470, BEHRENS V BEHRENS, 143 AD2d 617.

That is not the case here; moreover, the parties have

debts that could be met or reduced out of marital proceeds.

The proof indicates that the husband's monthly expenses

exceed his income, but, the proof also demonstrates he

incurred some of the excess over income after the action was

commenced. For example, he traded in a relatively new

automobile for a vehicle requiring an additional $100 or more

in monthly payments.

There is a question whether, even with the husband's

contribution, the wife would have sufficient income to

maintain the home; however, the Court is convinced if anyone

could accomplish this, the wife could.

MARITAL RESIDENCE

The Court must decide the value of the marital

residence. The parties have submitted appraisals that are

dramatically different. The husband's appraisal is for

$132,000 and the wife's for $92,000; both done by reputable

appraisers. Naturally, with such a discrepancy, the parties

were unable to reach consensus on the value of the home and

submitted the issue to this Court. The wife's appraisal took

into account the unfinished nature of much of the home

including unfinished drywall, flooring, door jams, trim and

face plates.

The husband's appraisal from Smith Realty listed even

more unfinished aspects that included the stairway, the

second floor rooms including panels, ceilings, sub-floors,

walls, closets and the fact that part of the outside deck

needs to be releveled due to sinking piers. However, no

adjustments are set out for these items.

Smith Realty said its appraisal was based on two

approaches: comparable sales and replacement value less

depreciation, but no details of replacement or depreciation

were set forth.

Both appraisals left a bit to be desired. In such a

situation, the Court may take the average of both. That

would seem to be the most equitable approach and would result

in a value for equitable distribution purposes of $112,000.

It is noted that the mortgage is currently estimated at

$44,000.

An option that the parties may consider to permit the

children to remain in the home is this: that an attempt to be

made to increase the mortgage on the marital residence and

advance the funds to the husband to allow him to pay debts or

acquire a home.

If that option fails to materialize within 10 business

days from this Memorandum Decision, within 5 business days

thereafter, the husband is to quote a price and the terms at

which he is willing to sell, or, to buy the interest of the

wife. The wife shall have the right to (1) buy, or sell to

the husband, at the price and on the terms he quotes, or, (2)

place the home on the market at $125,000 or other price

agreed to by the parties.

That decision must be made within 10 business days from

receipt of the husband's quotation.

If the wife opposes listing the property at $125,000,

and the parties cannot agree on a solution, the Court orders

that the residence be placed on the market for $125,000.

CHILD SUPPORT

The husband shall pay child support pursuant to the

Child Support Standards Act of $193.00 as long as neither

child is emancipated. He currently earns $43,500 annually.

He shall have the right to claim one of the children as a

dependent for income tax purposes as long as he pays his

child support. The husband also is paying $41.61 per pay

period (twice per month) for health insurance for the

children. The wife has recently doubled her income and now

earns about $28,500 which is about 40% of the husband's

earnings, but, as she is receiving maintenance and child

support payments, and, he is paying the insurance, the

parties shall equally pay any uninsured reasonable health

costs for the children including medical, dental, optical,

and pharmaceutical expenses.

SAVINGS PLAN

The husband has a savings plan at work with over

$30,000. The parties agree that this employment benefit

shall be distributed through a Qualified Domestic Relations

Order at 50% coverture, but do not agree about the credit or

timing of loans taken from the plan.

The evidence shows that at the commencement of the

action, the account had a balance of $32,654.64 with a loan

balance of $10,470.85. Since that time, the husband has

borrowed twice from the account. The wife claims had the

husband not borrowed from the account, the loan balance would

now be $7,675.08 and that she is entitled to $14,056.94.

The Court rules that the account shall be divided as of

the date of the commencement of the action. The wife has not

contributed to the reduction of the debt during the pendency

of this action from 11/93 to the present and has been

receiving maintenance during this time.

CARS

The wife has possession of the 1987 Dodge Caravan which

is paid for in full. There is no dispute that this car is

worth about $3000. The wife shall have sole title and use of

this car.

After the action was commenced, the husband purchased a

Jeep that has virtually no equity and upon which he is making

monthly payments of $382.48. The wife shall return title to

the Jeep to the husband who shall have sole title and use of

this car and be solely responsible for the payments and hold

the wife harmless thereon.

PERSONAL PROPERTY

The wife is to provide a time when the husband can pick up any of his personal effects and clothing remaining at the

home as well as an over the wheel storage chest for pick up,

and the tools, saw horses and carpentry books in the garage.

The wife shall retain all the rest of the tangible

personal property, including household furnishings, jewelry,

clothing, linen, dishes, furniture, etc..

There was disputed testimony regarding items the husband

retained and the value of all the items. However, no

appraisals were done on the personal property. It is

impossible based on the evidence presented to the Court to

place a monetary value on the items in question.

The Court determines that equitable distribution will

be accomplished by the division recited herein.

THE TWO SEPARATE REAL ESTATE PARCELS

Two parcels of land adjacent to the marital home were

transferred by the wife's parents and grandmother and deeded

to both the husband and wife. The wife claims these are her

separate property as they were gifts to her. The grandmother

did not testify. The wife's father did and acknowledged that

no gift letter was given. He said the deed was given to

protect the marital residence.

The presumption is that property in joint names is

marital. If the family wanted the gifts to be solely to the

wife, there were effective ways to express and carry out that

intent, viz., the property could have been deeded only in the

wife's name; they could have retained the parcels in their

name and gifted them by wills.

The Court understands that at the time the deeds were

executed, none of the parties had the remotest idea the

marriage might fail. However, by deeding the property to

both, the presumption is that a gift to both was intended.

Case law supports the proposition that a gift to both

parties is marital, and not a separate gift. See BEHRMANN V.

BEHRMANN, 204 AD2d 1076, KALLINS V KALLINS, 170 A.D. 2d 436, and ACKLEY V. ACKLEY, 100 AD2d 153, lv. denied, 63 NY2d 605. In ACKLEY, a 4th department case, the Court said:

"A gift of property to both spouses comes to them by

reason of the marital relation and should be considered as

property belonging to the marital partnership. Thus, wedding

gifts as well as other gifts made to both spouses have been

held to be marital property." citations omitted

It is the Court's decision that the two parcels are

marital property and that the proceeds are to be shared

equally when they are sold.

MAINTENANCE

The husband has been paying the wife maintenance in the

amount of $100 a week during the pendency of this action. He

claims that the wife has no need for any further maintenance.

Both parties appear to be in good health and will be

self-supporting in years to come. The wife recently

completed her degree, and her income has risen. She

currently earns $28,500 and the husband, $43,500. He will be

paying child support of $10,036 annually. However, she will

be supporting three people on $38,836 while he will be

supporting himself on $32,466.

This is a long term marriage where the wife only

recently has begun to earn a decent salary. While it is

hoped that her earnings will continue to rise, she will

either have to buy out the husband's interest in the home or

find a new place for she and the children to reside. The

husband will be paying marital debts, but, these are neither

numerous or insurmountable.

The wife asks for maintenance of $50.00 per week for

eight years. While it appears that the wife will require

some maintenance for a period, eight years is not

justifiable. She has already received maintenance of $100 per

week since November 1993.

This Court orders the husband to pay $50.00 per week

maintenance to the wife for four years, or, remarriage.

This should allow the wife to "get on her feet"

financially and allow her a period of adjustment.

The wife is granted a judgment for arrears in the amount

of $200.00.

The husband's request for a distributive award is

denied at this time. Since it is likely that the marital

home will be sold or the husband's interest bought out, a

distributive award is inappropriate.

ATTORNEY FEES

The wife's total bill is $6,217.50 plus $375 in costs.

The husband says that since he made a fair settlement offer,

there was no need to go to trial. It is a well-settled tenet

in our system of law, however, that everyone is entitled to

his/her day in Court. An offer, no matter how fair, should

not preclude the right to a day in court nor should a party

be penalized for exercising this right.

The husband has already paid the wife's lawyer $1000.00

pursuant to the preliminary order. Even with the improvement

in the wife's finances, the husband is still in a better

financial position than the wife. Furthermore, the fact that

husband contributed to the continued litigation can be taken

into account in setting fees. COTTON V COTTON, 147 Ad2d 436,

ROBINSON V ROBINSON, 166 AD2d 428.

The husband has not always paid support pursuant to the

order of this Court; he cashed in the parties' children's

college funds despite the temporary restraining order; caused

procedural delays by borrowing against funds and not timely

providing discovery nor providing the information about the

college funds. All of this has created additional work for

the wife's attorney.

It is the decision of the Court that the husband pay an

additional $2500.00 in full and final obligation toward the

wife's divorce fee. This amount shall be paid within 30 days

after the sale or refinancing of the marital residence.

The stipulations of March 6 and April 20, 1995 are

hereby incorporated but not merged in the decree of divorce.

5/15/95 MOTION

After testimony was taken in the hearing but before a

decision was rendered, the wife moved to modify the Court's

order or for a new trial in the alternative. The basis for

the motion was plaintiff's claim that the assessment on the

home was dramatically reduced from $134,000 to $95,800

the day after the trial.

This motion is denied. First of all, the motion was

premature because there was no decision at the time it was

made. One cannot move for a new trial under CPLR §4404 until

the decision or verdict is rendered.

The husband claims that the wife already had knowledge

of the reduction or possible reduction during the hearing.

There was insufficient proof in evidentiary form to

establish with certainty when, and why, the reduction took

place.

The Court further notes that the attorney for plaintiff

should not have written the court ex parte.

Submit order accordingly.

Dated: June 14, 1995

Mayville, New York

JOSEPH GERACE

Supreme Court Justice