equitable distribution factors in New York

1999The motion court correctly held that the 1991 default judgment of divorce, notwithstanding its failure to set forth any provisions for distribution of property as mandated by Domestic Relations Law § 236 (B) (5) (a), constitutes res judicata barring the former husband from commencing a subsequent separate action asserting an equitable distribution claim, which issue he had a full and fair opportunity to litigate in the original divorce action (see, Boronow v Boronow, 71 NY2d 284 ; Albert v Schoenlein, 229 AD2d 813 ).

1996Although plaintiff might otherwise have litigated that issue in the divorce proceeding, she was precluded from doing so by the court’s determination to deny consolidation and hold a hearing on damages in the conversion action following the equitable distribution hearing in the divorce action (cf., Boronow v Boronow, 71 NY2d 284, 289 ).

2011“An interim restraint on the disposition or encumbrance of property should not be imposed absent a demonstration that the party to be restrained lias done, or is threatening to do, an act which would prejudice the movant’s equitable distribution claim” (Rogers v Rogers, 161 AD2d 754 [1990]; see Sinanis v Sinanis, 67 AD3d 773, 775 [2009]; DiSanto v DiSanto, 279 AD2d 603 [2001]; Meyer v Meyer, 229 AD2d 354, 355 [1996]; Guttman v Guttman, 129 AD2d 537, 539 [1987]).

2011“An interim restraint on the disposition or encumbrance of property should not be imposed absent a demonstration that the party to be restrained lias done, or is threatening to do, an act which would prejudice the movant’s equitable distribution claim” (Rogers v Rogers, 161 AD2d 754 [1990]; see Sinanis v Sinanis, 67 AD3d 773, 775 [2009]; DiSanto v DiSanto, 279 AD2d 603 [2001]; Meyer v Meyer, 229 AD2d 354, 355 [1996]; Guttman v Guttman, 129 AD2d 537, 539 [1987]).

2005The Court otherwise denied the motion for leave to appeal, leaving the judgment of divorce and the Heitler order finally determined ( 99 NY2d 643 [2003]).

2005In August 2002, this Court affirmed the judgment of divorce and all the above orders, except to the extent of modifying to grant defendant’s motion for attorneys’ fees, to enable him to obtain representation ( 297 AD2d 233 [2002]).

2001Further, because a substantial right of defendant was affected, the court was not authorized pursuant to CPLR 5019 (a) to amend the judgment of divorce with respect to the equitable distribution of the bar unit (cf, Berson v Berson, 265 AD2d 439 ; Rosenthal v Rosenthal, 88 AD2d 974 ).

2001Resolution of the issue depends upon the nature of defendant’s right or interest in marital property and, therefore, involves a question of State law (see, Butner v United States, 440 US 48, 54-55 ).

2001Further, because a substantial right of defendant was affected, the court was not authorized pursuant to CPLR 5019 (a) to amend the judgment of divorce with respect to the equitable distribution of the bar unit (cf, Berson v Berson, 265 AD2d 439 ; Rosenthal v Rosenthal, 88 AD2d 974 ).

1999The motion court correctly held that the 1991 default judgment of divorce, notwithstanding its failure to set forth any provisions for distribution of property as mandated by Domestic Relations Law § 236 (B) (5) (a), constitutes res judicata barring the former husband from commencing a subsequent separate action asserting an equitable distribution claim, which issue he had a full and fair opportunity to litigate in the original divorce action (see, Boronow v Boronow, 71 NY2d 284 ; Albert v Schoenlein, 229 AD2d 813 ).

1999The motion court also properly exercised its discretion in denying the former husband’s subsequent motion to vacate the default judgment of divorce to the extent of reopening the issue of equitable distribution with respect to the alleged former marital residence, in view of his unexcused and deliberate default in the divorce action (see, e.g., Estate of Allen v Allen, 258 AD2d 423 ), his failure to seek such vacatur for approximately six years after entry of the judgment and his receipt of a copy thereof, and his acceptance of the benefits of the judgment by remarrying.

1998We therefore conclude that defendant “failed to show that [he] had made a substantial contribution” (Duspiva v Duspiva, 181 AD2d 810, 811 , lv denied 80 NY2d 752 ) to plaintiffs attainment of her degree, which was earned solely through her own ability and herculean effort, and that none of the equitable distribution factors (see, Domestic Relations Law § 236 [B] [5] [d] [1]-[13]) supported Supreme Court’s award of a portion of that asset to defendant (see, Small v Small, 227 AD2d 949 ; Daisernia v Daisernia, 188 AD2d 944 ; Duspiva v Duspiva, supra, at 811 ; compare, Bugliari v Bugliari, 169 AD

1998We therefore conclude that defendant “failed to show that [he] had made a substantial contribution” (Duspiva v Duspiva, 181 AD2d 810, 811 , lv denied 80 NY2d 752 ) to plaintiffs attainment of her degree, which was earned solely through her own ability and herculean effort, and that none of the equitable distribution factors (see, Domestic Relations Law § 236 [B] [5] [d] [1]-[13]) supported Supreme Court’s award of a portion of that asset to defendant (see, Small v Small, 227 AD2d 949 ; Daisernia v Daisernia, 188 AD2d 944 ; Duspiva v Duspiva, supra, at 811 ; compare, Bugliari v Bugliari, 169 AD

1998We therefore conclude that defendant “failed to show that [he] had made a substantial contribution” (Duspiva v Duspiva, 181 AD2d 810, 811 , lv denied 80 NY2d 752 ) to plaintiffs attainment of her degree, which was earned solely through her own ability and herculean effort, and that none of the equitable distribution factors (see, Domestic Relations Law § 236 [B] [5] [d] [1]-[13]) supported Supreme Court’s award of a portion of that asset to defendant (see, Small v Small, 227 AD2d 949 ; Daisernia v Daisernia, 188 AD2d 944 ; Duspiva v Duspiva, supra, at 811 ; compare, Bugliari v Bugliari, 169 AD

1998We therefore conclude that defendant “failed to show that [he] had made a substantial contribution” (Duspiva v Duspiva, 181 AD2d 810, 811 , lv denied 80 NY2d 752 ) to plaintiffs attainment of her degree, which was earned solely through her own ability and herculean effort, and that none of the equitable distribution factors (see, Domestic Relations Law § 236 [B] [5] [d] [1]-[13]) supported Supreme Court’s award of a portion of that asset to defendant (see, Small v Small, 227 AD2d 949 ; Daisernia v Daisernia, 188 AD2d 944 ; Duspiva v Duspiva, supra, at 811 ; compare, Bugliari v Bugliari, 169 AD

1995Accordingly, we conclude that defendant’s child support obligation should commence from the date of the first identifiable request for child support {see, Koczaja v Koczaja, 195 AD2d 693 , Iv denied 83 NY2d 756 ), namely January 28, 1993.

1991Defendant failed to object to Supreme Court’s valuation date on that ground and introduced no evidence of the property’s valuation on the date now alleged to be controlling (see, Verrilli v Verrilli, 172 AD2d 990 ).

1990An interim restraint on the disposition or encumbrance of property should not be imposed absent a demonstration that the party to be restrained has done, or is threatening to do, an act which would prejudice the movant’s equitable distribution claim (see, McCarthy v McCarthy, 156 AD2d 346 ; Cohen v Cohen, 142 AD2d 543 ; Nebot v Nebot, 139 AD2d 635 ).

1990An interim restraint on the disposition or encumbrance of property should not be imposed absent a demonstration that the party to be restrained has done, or is threatening to do, an act which would prejudice the movant’s equitable distribution claim (see, McCarthy v McCarthy, 156 AD2d 346 ; Cohen v Cohen, 142 AD2d 543 ; Nebot v Nebot, 139 AD2d 635 ).

1990An interim restraint on the disposition or encumbrance of property should not be imposed absent a demonstration that the party to be restrained has done, or is threatening to do, an act which would prejudice the movant’s equitable distribution claim (see, McCarthy v McCarthy, 156 AD2d 346 ; Cohen v Cohen, 142 AD2d 543 ; Nebot v Nebot, 139 AD2d 635 ).

1988In light of the change in the parties’ financial circumstances as a result of our decision, and in light of our determination that the plaintiff should not have prevailed on her application to set aside the separation agreement, we hereby remit this matter to the Supreme Court, Nassau County, for a new determination as to the amount, if any, of counsel fees to which the plaintiff is entitled (see, Domestic Relations Law §237; see also, Borakove v Borakove, 116 AD2d 683 ; Apkarian v Apkarian, 39 AD2d 609 ).

1988We find unpersuasive the petitioner’s contention that the equitable distribution claim may be maintained by the decedent’s estate regardless of the abatement of the underlying divorce action, as Domestic Relations Law § 236 (B) contains no provision to that effect, and it is a basic rule of statutory construction that the Legislature’s failure to include a specific matter within a particular statute may be interpreted as an indication that its exclusion was intended (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 74; Pajak v Pajak, 56 NY2d 394 ).