Rauch v. Rauch

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The parties were married for approximately eight years and had no children. Plaintiff commenced an action for divorce on the ground of constructive abandonment. Contrary to defendant’s contention, there is sufficient evidence of constructive abandonment (see, Pascarella v Pascarella, 210 AD2d 915, 916). The record also does not support defendant’s contention that Supreme Court erred in distributing certain treasury bills. We agree with defendant, however, that the court erred in its valuation of the dividend checks. The record reflects that $3,103.89 in dividends were received and cashed by defendant, not $12,764.43 as determined by the court. Thus, we modify the judgment accordingly.

We further conclude that the court erred in determining that defendant is entitled to only 50% of the marital assets. Although defendant contributed approximately 75% of the $250,000 that the parties brought to the marriage, the parties commingled their assets during the marriage. During the marriage, plaintiff earned $36,000 per year, while defendant earned *1142$13,000; at plaintiff’s request, defendant did not work during the last two years of the marriage. In light of the relatively short duration of the marriage and considering the financial contribution of each party (see, Domestic Relations Law § 236 [B] [5] [d] [1], [2]), we conclude that a distribution of 65% of the marital assets to defendant more accurately reflects the contribution of the parties to the marriage than the equal distribution directed by the court (see, Price v Price, 69 NY2d 8; Arvantides v Arvantides, 64 NY2d 1033; Kobylack v Kobylack, 111 AD2d 221, 222-223). Thus, we further modify the judgment accordingly. In light of the distributive award, an award of maintenance is not warranted (see, Domestic Relations Law § 236 [B] [6] [a]). Finally, it was not an abuse of discretion to distribute certain items of personal property to plaintiff. (Appeal from Judgment of Supreme Court, Queens County, Miller, J.H.O.^—Divorce.) Present—Pine, J. P., Fallon, Callahan, Balio and Davis, JJ.