|Cordula Bartha, Respondent-Appellant,|
Nicholas Bartha, Appellant-Respondent.
State of New York, Appellate Division, First Department, January 27, 2005
APPEARANCES OF COUNSEL
Ira E. Garr, P.C., New York City (Jane R. Slavin and Ira E. Garr of counsel), for appellant-respondent.
Polly N. Passonneau, P.C., New York City (Donna E. Bennick and Polly N. Passonneau of counsel), respondent-appellant.
OPINION OF THE COURT
The determination of equitable distribution made by the Special
Referee and incorporated in the court's judgment is both inequitable
and unsupported by the record in numerous respects; in particular, the
conclusion that plaintiff had no right to any portion of the marital
residence or its appreciation in value was contrary to fundamental
principles of equitable distribution. Reversal of the financial
provisions of the judgment is therefore necessary.
Plaintiff Cordula Bartha, who was born in the Netherlands,
emigrated with her family to Italy in 1960. She earned a Ph.D. in
German literature from the University of Rome, after which she found
employment as an assistant to a publisher. In 1973, she met defendant
Nicholas Bartha, a medical student of Romanian and Hungarian heritage.
The parties lived together in Rome until defendant graduated from
medical school in April 1974, at which time they relocated to the
United States and moved in with defendant's parents in a large house
owned by defendant and his mother in Rego Park, New York. While
defendant studied to pass the examination required of graduates of
foreign medical schools, plaintiff worked in the cultural section of
the Netherlands Consulate.
In 1976, defendant passed the test that entitled him to
practice medicine in the United States, and began an internship at
Elmhurst General Hospital in Queens, New York. At about the same time,
plaintiff learned that she was pregnant, and the parties married on
January 10, 1977. The couple's two children, born, respectively, on
August 5, 1977 and December 11, 1978, are now adults.
Although plaintiff continued to work until shortly before their
first child was born, she subsequently remained at home with the
children until the youngest was approximately 11 years old. Plaintiff
returned to work at the Consulate on a part-time basis in 1989, and
resumed full-time status there in 1994. In the meantime, defendant
completed his internship and residency, and from 1979 until the present
has worked as an emergency room physician.
The family, along with defendant's parents, moved to Manhattan
in 1986, to a townhouse located on East 62nd Street, which was
purchased in 1980 for $395,000, with cash totaling $199,699 obtained
from a variety of sources, including a check from defendant's parents
and a payment of separate funds belonging to plaintiff; the seller took
back a mortgage for the remainder. Once the renovations on the building
were completed, this townhouse contained the duplex apartment in which
the parties resided, another apartment for defendant's parents, a
rental apartment, and a physician's office unit on the first floor.
Title to the property was placed in the name of defendant's parents at
the time of the purchase; subsequently, it was put jointly in
defendant's and his mother's name. Although the parties disagree as to
the source of the mortgage payments between 1980 and 1985, it is
undisputed that by 1988 the mortgage payments were made from the
parties' joint account, as were the costs of the extensive renovations
made on the property prior to their taking residence.
In October 2001, plaintiff wife vacated the marital residence and commenced this action for divorce.
After a fault trial, a divorce was granted in favor of
plaintiff. The economic issues were referred to a Special Referee to
hear and determine.
The Referee found that the townhouse on East 62nd Street was not marital property, but [*2]was
in part the separate property of defendant and in part belonged to the
parties' children. It was noted that defendant obtained title to 50% of
the marital residence as a gift from his father and another 25% as an
inheritance from his mother, while the remaining 25% had been willed by
his mother to the children of the marriage.
The Referee then found that plaintiff was entitled to a
distributive award, calculated to include (1) half the money the
marital estate would have received had they rented out the apartment
supplied to defendant's parents (determined to be $400,000), (2) half
the income lost to plaintiff because she stayed home instead of working
while the parties' children were young (determined to be $550,000), (3)
half of the $1,112,467 in marital funds which the couple put into the
marital residence, and (4) the $196,500 in separate property which
plaintiff contributed over the years to the marital residence. The
total distributive award thus came to a total of $1,227,733.50.
The Referee also directed defendant to pay plaintiff
maintenance of $2,000 per month for three years, and denied plaintiff
an award of counsel fees.
We affirm the determination awarding a divorce to plaintiff on
grounds of cruel and inhuman treatment. Plaintiff's proof, when viewed
cumulatively, established by a preponderance of the credible evidence
that defendant had engaged in a course of conduct which was harmful to
the plaintiff's physical and mental health, thus rendering cohabitation
unsafe or improper (Domestic Relations Law § 170 ).
This was not a case of ordinary marital dissatisfaction or even
"riotous quarrels" as defendant suggests. Defendant intentionally
traumatized plaintiff, a woman of Jewish origin born in Nazi-occupied
Holland, with swastika-adorned articles and notes affixed around their
home, and became enraged when she removed them. He ignored her need for
support and assistance while she was undergoing surgery and treatment
for breast cancer (see Siczewicz v Siczewicz, 92 AD2d 915, 916 , appeal dismissed
59 NY2d 968 ). He systematically cut off her access to marital
funds and credit as a means of psychological abuse. Even plaintiff's
assertion that defendant completely ceased speaking to her is not
benign, but must be understood in the context of the prior years'
Physical violence is not a prerequisite for a showing that
plaintiff's physical or mental well-being rendered it unsafe or
improper for her to continue cohabiting with defendant as required by
Domestic Relations Law § 170 (1) (see Hessen v Hessen, 33 NY2d 406, 410 ; Pfoltzer v Morris-Pfoltzer,
9 AD3d 615, 616-617 ). Nor did plaintiff need an expert to prove
that defendant's actions had the claimed effect on her mental condition
(see Levine v Levine, 2 AD3d 498, 500 ), particularly in
view of her explanation that she is the type of person who finds it
difficult to consider seeking psychological treatment.
However, the Referee's determination of the economic issues must be rejected.
With regard to the Manhattan townhouse on East 62nd Street,
which was purchased in 1980 for $395,000, and was valued by the neutral
appraiser in June of 2002 at $5 million, it was error to accept at face
value the claim that initially placing the townhouse in the names of
defendant's parents, and defendant's subsequently holding joint title
with his mother, rendered the property nonmarital.
It is true that it was
defendant's parents who took title to the townhouse when it was
purchased in 1980, and that defendant's father thereafter purported to
gift his half of the house to defendant, while the other half remained
in his mother's name, until at her death in 1997, when defendant
inherited 50% of her interest in the property, with the remainder
willed to her granddaughters, the parties' children. However, the names
in whom title was placed does not end the analysis, especially in
circumstances such as these.
It is central to the Equitable Distribution Law that the term
"marital property" includes property acquired by either spouse during
the marriage "regardless of the form in which title is held" (Domestic
Relations Law § 236 [B]  [c]). That one of the spouses acquired
title to property jointly with another relative would not necessarily
interfere with its being considered marital, at least to the extent of
the spouse's established interest (see Antenucci v Antenucci,
193 AD2d 948 ). Moreover, in this instance, the manner in which
defendant's parents initially obtained title, and defendant then
obtained title from his parents, supports the claim that the townhouse
was truly the marital property of these parties, at least in part, from
the outset, and that any additional interest that defendant acquired
from his parents subsequently might similarly be considered marital
property as well.
It is undisputed that $45,095 of the $199,699 cash used for the
purchase of the townhouse came from plaintiff's separate property.
Moreover, while $114,369 of the cash down payment came from a check
from defendant's parents' account, in the context of the probate of his
mother's estate, defendant took the position that at least $60,000 of
that payment belonged to him and constituted marital assets. Indeed,
that defendant considered the funds held in his parents' names to
belong in part to himself and his wife was illuminated by the manner in
which he and his family handled their finances generally. For instance,
while defendant's mother alone received the rents on the Rego Park
building that she and defendant had purchased jointly before the
marriage, the building's expenses were paid by plaintiff and defendant,
from marital earnings. Indeed, in the probate of his mother's estate,
in which defendant successfully defended a challenge by his nephews to
his right to inherit his mother's interest in the townhouse, defendant
asserted that he and his parents had so thoroughly commingled their
assets that while he had, technically, inherited property from his
mother, the inheritance actually amounted to a repayment to him of
financial loans that he and his wife had made to his mother over the
course of many years.
There is a "presumption in favor of marital property, premised
on the contemporary view of marriage as an economic partnership,
crediting each party's contributions, whether monetary or not, to the
growth and value of the marriage" (DeJesus v DeJesus, 90 NY2d
643, 648 ). The term marital property must be broadly construed
in order to give effect to the economic partnership concept (Price v Price, 69 NY2d 8, 11 ), and assure that "to the extent that the appreciated value of separate property is at all
'aided or facilitated' by the nontitled spouse's direct or indirect
efforts, that part of the appreciation is marital property subject to
equitable distribution" (Hartog v Hartog, 85 NY2d 36, 46 ).
To the extent defendant establishes that a portion of the down
payment for the Manhattan townhouse was from funds of his parents which
had not been intermingled with marital funds, or [*4]from
his own separate property, he is entitled to a credit for that
contribution; but, otherwise, the property, or at least the 75%
interest therein currently held in defendant's name, is marital property[FN*]
(see Heine v Heine, 176 AD2d 77, 84 , lv denied
80 NY2d 753 ). The appreciation of the value of the house, from
$395,000 to $5 million, was unrelated to the down payments, but very
much related to the complete gutting and renovation which was largely
overseen by plaintiff, and paid for out of the parties' marital funds (id.).
Furthermore, the mortgage payments were made entirely from marital
funds, at least from 1988 on, and possibly during the earlier years as
As to the distributive award that the court granted to
plaintiff, both parties agree that there is neither support nor
sufficient explanation of how the Referee calculated the amounts of
$400,000 for loss of rental income and $550,000 for plaintiff's loss of
employment income. Even if we agreed with the characterization of the
marital residence as defendant's separate property, a remand would be
necessary on this basis in any event.
The need for reassessment of the equitable distribution award
also necessitates reassessment of the court's maintenance award to
plaintiff. We note, however, that the record fails to disclose how a
maintenance award of $2,000 per month for three years will enable
plaintiff, who currently lives in a small apartment in Washington
Heights with her two adult daughters, to retain her predivorce standard
of living (see Hartog v Hartog, 85 NY2d at 50-52; Summer v Summer,
85 NY2d 1014 ). Finally, the question of whether or not plaintiff
is entitled to an award of legal fees in connection with this
matrimonial proceeding must also be reassessed in accordance with the
final equitable distribution determination.
Accordingly, the judgment of divorce of the Supreme Court, New
York County (Joan B. Lobis, J.), entered May 9, 2003, which, inter
alia, granted plaintiff a divorce, provided for a distributive award to
the wife, awarded her maintenance in the sum of $2,000 per month for a
period of three years, and denied her application for attorney's fees,
should be modified, on the law, so as to vacate the provisions
regarding equitable distribution, maintenance and counsel fees, and the
matter remanded for a new fact-finding hearing and determination of
those issues in accordance herewith, and otherwise affirmed, without
Buckley, P.J., Tom, Andrias and Marlow, JJ., concur.
Judgment of divorce, Supreme Court, New York County, entered May
9, 2003, modified, on the law, so as to vacate the provisions regarding
equitable distribution, maintenance and counsel fees, and the matter
remanded for a new fact-finding hearing and determination of those
issues in accordance herewith, and otherwise affirmed, without costs.
Footnote *: While plaintiff
challenges the authority of defendant's mother to bequeath 25% of the
house to her granddaughters, she nevertheless does not want to
challenge her daughters' ownership rights.
Source: New York State Courts