Opinion
December 26, 1989
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the judgment is modified, on the law and the facts, by deleting from the fourth decretal paragraph thereof the words "including all the furnishings therein", and adding thereto the following: "each of the parties is awarded a 50% interest in the furnishings in the marital residence; the wife may either provide the husband with a distribution in kind of his interest, or pay him the sum of $15,000"; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the appeal from the order dated April 20, 1988, is dismissed as academic in view of the disposition of the appeal from the judgment, without costs or disbursements; and it is further,
Ordered that the order dated June 8, 1988, is affirmed, without costs or disbursements.
Contrary to the husband's present contention, we discern no impropriety in the Trial Justice's distribution of a 74% interest in the marital residence to the wife and a 26% interest to the husband. The record demonstrates that the marriage endured for approximately 12 years and that the parties had no children. Moreover, the parties' income tax returns establish that the wife was the principal wage earner during this time, while the husband's earnings were generally insubstantial and erratic, thereby hampering his ability to meet day-to-day marital expenses, with the exception of the acquisition of furnishings as noted herein. Additionally, the record indicates that the wife performed substantially all of the usual and customary housekeeping duties during the parties' marriage. Under the peculiar circumstances of this case, we conclude that the Trial Justice's distribution of the marital residence between the parties, which approximated the ratio of the parties' respective earnings during the marriage, did not constitute an improvident exercise of discretion (see, Kobylack v Kobylack, 111 A.D.2d 221; see also, Hansen v Hansen, 137 A.D.2d 491).
Similarly, we perceive no error in the Trial Justice's distribution of the parties' remaining assets according to the identity of the party in whose name each asset is held.
However, we conclude that the Trial Justice erred in awarding all of the furnishings in the marital residence to the wife, inasmuch as the record demonstrates that the husband made substantial economic contributions to the acquisition of these items. Accordingly, we find that the parties are each entitled to a 50% interest in the furnishings. Moreover, since these items were assigned an estimated value of $30,000 by the wife, we find that she may choose either to provide the husband with a distribution in kind of his interest, or to pay him the sum of $15,000 in lieu of a distribution in kind.
In view of the foregoing, the husband's appeal from the order dated April 20, 1988, which denied his motion to modify the judgment on the aforementioned grounds, is dismissed as academic.
Finally, the denial of the husband's motion for a new trial on the ground that the Trial Justice was unable to adjudicate the matter impartially due to personal problems was entirely proper. The motion was untimely (see, CPLR 4405), and, in any event, it consisted of sheer speculation and was unsupported by any substantiated facts. Mollen, P.J., Rubin, Sullivan and Rosenblatt, JJ., concur.