DIVORCE - WHEN ONE SPOUSE REFUSES TO COOPERATE IN SALE OF MARITAL RESIDENCE

Uttamchandani v Uttamchandani, 2019 NY Slip Op 06644, Decided on September 18, 2019, Appellate Division, Second Department:

"...….

In October 2015, the plaintiff moved, inter alia, to enforce certain provisions of the judgment of divorce, including those relating to the defendant's obligation to cooperate in the sale of the marital residence, and for a determination of certain credits to be paid to the plaintiff from the defendant's share of the net proceeds of the sale. Among other things, the plaintiff sought a determination of a credit for 50% of the mortgage, taxes, and insurance she had paid on the marital residence since April 15, 2013. In the order appealed from, the Supreme Court, inter alia, determined that the plaintiff was entitled to credits of (1) $32,472.58, representing 50% of the payments she had made for the mortgage, taxes, and insurance on the marital residence; (2) $45,547.47, representing child support arrears; (3) $49,200, representing her share of the value of the defendant's business, ConnectIt, LLC; and (4) $24,963.25, representing the balance of the TD Ameritrade account. The defendant appeals, arguing that the court erred in awarding the plaintiff these credits.

The defendant contends that the Supreme Court erred in granting the plaintiff a credit for 50% of the mortgage, taxes, and insurance that she had paid on the marital residence since April 15, 2013, arguing that this resulted in the defendant making "double shelter payments" for the parties' children inasmuch as he was paying child support during the relevant period of time. We reject this contention.

The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors (see Westreich v Westreich, 169 AD3d 972, 976; Minervini v Minervini, 152 AD3d 666, 668; Gillman v Gillman, 139 AD3d 667, 671). It is generally the responsibility of both parties to maintain the marital residence and keep it in good repair during the pendency of a matrimonial action (see Brinkmann v Brinkmann, 152 AD3d 637, 639; Goldman v Goldman, 131 AD3d 1107, 1108; Hymowitz v Hymowitz, 119 AD3d 736, 742; Le v Le, 82 AD3d 845, 846). "Where . . . a party has paid the other party's share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required" (Le v Le, 82 AD3d at 846; see Morales v Carvajal, 153 AD3d 514, 515; Goldman v Goldman, 131 AD3d at 1108).

Here, the plaintiff was entitled to receive a credit against the proceeds of the sale of the martial residence for the money that she paid to reduce the balance of the mortgage during the pendency of the action (see Morales v Carvajal, 153 AD3d at 515; Le v Le, 82 AD3d at 845-846). In deciding to award the plaintiff credit for 50% of the carrying charges, the Supreme Court considered the defendant's payment of child support, but nonetheless concluded that the plaintiff should receive 50% reimbursement. Under the circumstances of this case, where the plaintiff effectively was compelled to live in the marital residence during the subject time because of the defendant's refusal to cooperate in its sale, we agree with the court's determination to award the plaintiff a credit for 50% of the payments she made on the mortgage, taxes, and insurance on the marital residence since April 15, 2013 (cf. Markopoulos v Markopoulos, 274 AD2d 457, 459). The amount of child support paid by the defendant was less than the amount of the expenses the plaintiff incurred with respect to the marital residence and the defendant's refusal to cooperate in the sale prevented the plaintiff from reducing the housing expense for herself and the children."