Please indulge me; it’s one of my pet issues. And I apologize in advance for what may be my most boring blog post to date.
Writing math narratively is very difficult. When drafting a divorce settlement agreement, I try to include examples whenever formulas are written out. When reading decisions, I often draw a flow chart to help me follow the calculations.
Calculations done by the court establish rules of law. When an appellate court does it, that’s the way it’s going to be done in all cases like that in the future. All the more reason that the reader be able to follow and understand the calculations made by the court. For each calculation, you need to know how much went from where to where and why.
Sometimes, I can’t follow those calculations made by the court. Take the February 26, 2020 decision of the Second Department in Alliger-Bograd v. Bograd. The Court modified the equitable distribution credits awarded by retired Suffolk County Supreme Court Justice Carol MacKenzie; reducing from $81,829.15 to $23,350.00 the amount to be paid by a husband to the wife, in addition to the wife acquiring the husband’s interest in the marital residence.
I am not sure whether the decision provides all the numbers used to get to the final result. The marital residence being acquired by the wife was worth $545,000.00 There was a mortgage and a Home Equity Line of Credit (HELOC) that totaled $321,000.00. At first look, there was $224,000.00 in equity.
However, Justice Mackenzie determined that $66,952.97 of the HELOC should be “paid back” by the husband. That money was loaned to the husband’s business which he was keeping (the wife did not receive a share of the business’s value). The wife was also granted a $50,000.00 separate property credit.
So, envision this as a sale to a third party. From the $545,000.00 gross price, the mortgage and HELOC must be satisfied. However, $66,952.97 of the HELOC is to be satisfied by the husband. Think of the $66,952.97 as a third lien. Subtract the remaining $254,047.03 of the mortgage and HELOC ($321,000.00 minus $66,952.97) from the $545,000.00 gross price, leaves $290,952.97.
From this, the wife receives the first $50,000.00 off the top as her separate property credit, leaving $240,952.97. That balance gets equally divided each party receiving $120,476.49 (rounded). The wife now has this $120,476.49 plus her $50,000.00 separate property credit.
From the husband’s $120,476.49, he must pay the $66,952.97 of the HELOC used for his business. This leaves him with $53,523.51 (rounded).
The wife was also awarded a credit of $36,000 for loans she made to the husband for capital contributions to his business, using monies she received from liquidating her premarital stock. The husband must pay this back out of his remaining $53,523.51 share of the house equity, leaving him owed $17,523.51 for his interest in the house.
Put another way, there is $224,000.00 equity in marital residence, deducting the full mortgage and HELOC. Of this, the wife is to receive $170,476.49 ($120,476.49 plus $50,000.00); the husband is to receive $53,523.51. The shares total $224,000.00. Then from his equity share, the husband must pay the wife $36,000.00 for her loan to the husband’s business.
The Second Department, however, found that in addition to title to the home, the wife was to be paid $23,350.00 (and not the $81,829.15 Justice MacKenzie determined the wife was owed).
Now, the Second Department did state that the wife was owed “credits in the sum of $143,826 owed to the plaintiff toward the defendant’s share of the equity in the marital residence.” However, it is not clear to me where that number, $143,826, came from, or whether that is told to us in the opinion. It may just be an incredible coincidence, but if we take the $36,000.00 loan-for-business credit, plus the $66,952.97 HELOC loan-for-business credit, plus the $17,523.51 I computed the husband was owed and the $23,350.00 the Second Department computed the wife was owed, that totals $143,826 (rounded). This does not tell us from where or how the wife received the credit to her from the husband of $40,873.51 (the difference between the $17,523.51 I computed the husband was owed and the $23,350.00 the Second Department computed the wife was owed).
Here’s how the Second Department said the numbers worked:
However, we disagree with the Supreme Court’s calculations in determining each party’s equity in the marital residence. The court, in effect, awarded the plaintiff a double credit for the $66,952.97 loan to the defendant’s business from the HELOC. In addition to awarding the plaintiff a $66,952.97 credit toward the defendant’s share of the equity in the marital residence, based on the court’s method used to calculate the equity in the marital residence, the defendant was already being held responsible for part of the balance owed on the HELOC. In determining the net equity of the marital residence, the court should have deducted a combined mortgage and HELOC balance of only $254,048, rather than $321,000, from the $545,000 value of the marital residence, to arrive at a net equity of $290,952. By including the $66,952 in the combined mortgage and HELOC balance when determining the net equity, the court double counted when it also deducted $66,952 from the defendant’s share of the net equity. Moreover, in awarding the plaintiff a $50,000 separate property credit for premarital funds used to purchase the marital residence, the court should have deducted $50,000 from the net equity of $290,592, to arrive at a net equity of $240,952. Thus, the defendant’s one-half share of the equity in the marital residence is the sum of $120,476. After applying credits in the sum of $143,826 owed to the plaintiff toward the defendant’s share of the equity in the marital residence, and awarding title of the marital residence to the plaintiff, the balance owed to the plaintiff is the sum of $23,350, not $81,829.15 as was determined by the court. Therefore, we modify the judgment accordingly.
Christopher J. Chimeri and Glenn R. Jersey III, of Quatela Chimeri PLLC, of Hauppauge, represented the husband. Kevin J. Fitzgerald, P.C., of Smithtown, represented the wife