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Supreme Court, Delaware County, December 5, 2009
APPEARANCES OF COUNSEL
Frederick J. Neroni, Delhi, for plaintiff. Donald J. Schwartz, Oneonta, for defendant.
{**26 Misc 3d at 1062} OPINION OF THE COURT
Eugene E. Peckham, J.
{**26 Misc 3d at 1063}This case presents what has lately become a common occurrence; a man and woman live together, sometimes for years, and then get married. The parties in this case began living together in 1986 and married in 2004. Both the parties' pleadings are for divorce on the grounds of cruel and inhuman treatment and equitable distribution. Neither fraud, partnership, nor constructive trust have been pleaded.
Here, both parties testified they met in California in 1986 when he was 17 and she was 39. Plaintiff's first husband, a firefighter, had died, leaving her sole owner of a house in Bayside, Queens. She paid for a ticket for defendant to come to Queens and they began living together. The house in Queens was sold in 1998 and the proceeds were used by plaintiff to pay $95,000 cash for a house in Bloomville, New York. The house has now been appraised for $210,000 as of May 2007 when this action was commenced (defendant's exhibit A).
At closing in December 1998 the deed to the Bloomville house was placed in joint names (defendant's exhibit C). Subsequently, in October 1999, defendant quitclaimed his interest in the house to plaintiff (plaintiff's exhibit 1). Plaintiff testified the attorney for the closing made a mistake putting the house in both names and this was corrected by the quitclaim. Defendant testified he signed the quitclaim under duress and in the interest of harmony, because the joint names on the house became a major argument between them.
The parties were married August 7, 2004.
Defendant is a plumber. After the Bloomville house was purchased and prior to the marriage, defendant did substantial work on the house. He testified that, together with a carpenter friend, he remodeled the kitchen and bathroom. The carpenter was not paid, as defendant worked on jobs for the carpenter without charge, a barter exchange. Defendant also installed a new furnace and heating system for the house. Besides the furnace, this involved installing all new pipes to convert the heat from electric to propane gas and radiators.
Defendant also testified he repaired the chimney, took down barn wood and installed sheetrock in the living room, put a new floor and appliances in the laundry room and put in a driveway and culvert and paid $4,000 toward a new septic system. He was also responsible for mowing and outside maintenance and major repairs inside the house.
Plaintiff disputed the amount of work done by defendant, saying he only put a sink in the kitchen and a shower and toilet{**26 Misc 3d at 1064} in the bathroom. She did admit he paid $4,000 toward the septic and installed the furnace and heating system, but claimed she paid $7,000 for it. She also claimed that after the kitchen and bathroom remodelings, she paid for trips to Las Vegas and London and Amsterdam and that these trips were compensation for the work done. On cross-examination, however, she admitted these were vacations they took together and she enjoyed them.
Plaintiff's position is that the house is her separate property and defendant should receive no share of it. Plaintiff was trying to downgrade defendant's work and contribution to enhance her position and therefore her testimony is less credible. Defendant, as a plumber actually doing the work, is more likely to remember the work he did and thus his testimony is believable. The work done by defendant obviously enhanced the value of the house.
Both parties testified the reason they did not get married sooner was that plaintiff was collecting Social Security as a result of the death of her first husband and did not want to lose that income. Both parties also testified that throughout their relationship they shared expenses in paying bills although they disagreed as to how much each contributed. Plaintiff claimed defendant gave her $600 per month. Defendant claimed he was paid in cash and that he "brought the money, put it on the table and said pay the bills."
A party who contributes separate property toward purchase of the marital residence is entitled to a return of the total contribution. (Milnarik v Milnarik, 23 AD3d 960 [3d Dept 2005]; Zanger v Zanger, 1 AD3d 865 [3d Dept 2003].) The burden of proof is upon the person claiming such separate property credit. (Walasek v Walasek, 243 AD2d 851 [3d Dept 1997].) But once the separate property is commingled in joint names, it becomes marital property. (Homkey-Hawkins v Hawkins, 42 AD3d 725 [3d Dept 2007]; Fessenden v Fessenden, 307 AD2d 444 [3d Dept 2003].)
"Under the equitable distribution statute, separate property is defined to include an
increase in value of separate property, except to the extent that such appreciation is due
in part to the contributions or efforts of the other spouse (Domestic Relations Law

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