The judgment of divorce awarded by Orange County Supreme Court Justice Paul I. Marx, in Gafycz v. Gafycz, granted the wife, among other relief, 100% of two parcels of marital real property, 25% of properties located in Port Jervis, and $1,000 per month in nondurational (permanent) spousal support. The husband appealed.

In its March 1, 2017 decision, the Appellate Division, Second Department, affirmed. It held that Justice Marx providently exercised his discretion when awarding the wife 100% of the marital properties located in Chester and Pond Eddy. The appellate court noted, “The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.”

In this case, Justice Marx had considered that the husband secreted assets, willfully failed to comply with court orders, and was deliberately evasive in his testimony in fashioning its equitable distribution award of the marital property.

[Comment: Often a spouse owning an asset, such as a business, can succeed in frustrating the rights of the other spouse by being evasive. The burden of proving the value of an asset is placed upon the spouse looking to share in the value of the asset; and if the asset-owning spouse is evasive, the rights of the non-owner may be prejudiced.

On the other, the burden-of-proof rules do not have to interfere with the discretion of a court looking to do right by one spouse in the face of economic misconduct or disclosure evasion by the other. Here, Justice Marx was able to make the adjustment to the distribution of assets he thought appropriate.]

On other issues, the husband had contended that Justice Marx Court erred in awarding his wife a 25% interest in properties located in Port Jervis. However, the Second Department upheld the award, finding the husband failed to establish that he purchased his half-interest in the properties using separate, as opposed to marital, funds. Justice Marx, providently exercised his discretion in dividing equally between the parties the husband’s half-share in the properties.

Also, the appellate court noted that the amount and duration of spousal maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts. Here, Justice Marx properly determined the amount and duration of maintenance.

Of note, both parties represented themselves on the appeal.