SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1288
CA 14-01930
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.
GARY PALUMBO, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
LAUREN PALUMBO, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)
MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT.
BROWN HUTCHINSON LLP, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Kenneth R. Fisher, J.), entered December 31, 2013 in a divorce
action. The judgment, among other things, granted plaintiff a
divorce.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: In appeal No. 1, plaintiff appeals from a judgment
of divorce and, in appeal No. 2, he appeals from a subsequent order
that modified the judgment by including a provision regarding the
refinancing or sale of the marital residence. Addressing first appeal
No. 1, we reject plaintiff’s contention that Supreme Court erred in
allocating debt incurred from three separate loans all to him rather
than to him and defendant, jointly. “A trial court . . . has broad
discretion in deciding what is equitable under all of the
circumstances” (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420). Here,
the court found that the debts “were not ‘predominantly . . .
marital’ ” (Dietz v Dietz, 203 AD2d 879, 882). The money from the
loans was used to further plaintiff’s business interests, and
defendant was not given any interest in those business interests in
the court’s equitable distribution of property (cf. Markel v Markel,
197 AD2d 934, 935). We see no reason to disturb the court’s
determination (see Rivera v Rivera, 126 AD3d 1355, 1356).
We reject plaintiff’s contention that the court erred in
concluding that defendant was entitled to a credit for marital funds
that were used to pay a separate debt of plaintiff (see Mahoney-
Buntzman, 12 NY3d at 421; Khan v Ahmed, 98 AD3d 471, 472-473).
Defendant had no knowledge of the loan or that plaintiff used marital
funds to pay off the loan. Plaintiff’s contention that the court
further erred in failing to credit him for his contribution of
-2- 1288
CA 14-01930
separate property to purchase the marital residence is raised for the
first time on appeal and is not properly before us (see Ciesinski v
Town of Aurora, 202 AD2d 984, 985). We have considered plaintiff’s
remaining contention with respect to appeal No. 1 and conclude that it
is without merit.
With respect to appeal No. 2, the parties stipulated during the
nonjury trial to the value of the marital residence, and they further
stipulated that plaintiff could keep the marital residence only if he
was able to refinance it within three months. The parties otherwise
agreed that plaintiff would sell the residence. The three months was
to be measured from the date of the court’s decision or the date of
the judgment. Neither the decisions nor the judgment rendered by the
court mentioned that part of the stipulation regarding the refinancing
or sale of the residence. A little more than three months after the
date of the judgment, defendant moved for, inter alia, a money
judgment in the amount of her distributive award, including her share
of the marital residence, or the sale of the marital residence so that
plaintiff would then pay her the amount of her distributive award.
Plaintiff opposed the motion, arguing that the judgment and decisions
failed to reference the stipulation regarding the refinancing or sale
of the residence, and cross-moved for a stay of enforcement pending
appeal. However, plaintiff had no objection to a modification of the
judgment to incorporate the stipulation provided that the court
granted his cross motion for a stay. By the order in appeal No. 2,
the court granted that part of defendant’s motion seeking a sale of
the residence and granted the cross motion for a stay. The court
amended the judgment to incorporate the stipulation nunc pro tunc, and
ordered the residence to be listed for sale inasmuch as plaintiff had
not refinanced the residence within three months from the date of the
judgment.
On appeal, plaintiff contends that the amendment was improper
because it placed him in immediate default, and he requests an
additional three months to refinance. We note that plaintiff does not
contend that the court erred in incorporating the oral stipulation
into the judgment of divorce and does not seek to vacate the provision
but, rather, he seeks only to modify it (cf. Lewis v Lewis, 70 AD3d
1432, 1433). Under the circumstances of this case, we modify the
order in appeal No. 2 by providing that, if the marital residence is
not refinanced within 90 days of service of a copy of the order of
this Court with notice of entry, the marital residence is to be sold.
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court