Generally, it is the more “successful” spouse who submits the proposed judgment of divorce to the Court to be signed and entered. In all events, a spouse who intends to take an appeal on an issue must make sure:
- that the issue to be appealed is covered by the judgment;
- or an appeal is taken separately from the order deciding the issue; or
- an amended judgment is entered and an appeal is taken from that amended judgment.
Take the July 8, 2020 decision of the Appellate Division, Second Department, in D’Arrigo v. D’Arrigo. Among the issues resolved on appeal, the Second Department extended to five years the three-year maintenance award of $7,500 per month made by Westchester County Supreme Court Justice Victor Grossman.
The Second Department also affirmed Justice Grossman’s award to the husband of a $118,000 separate property credit for realty he owned before the marriage and transferred to himself and the wife, jointly, after the marriage. This was not a dollar-for-dollar credit, but rather a credit calculated, in part, upon the proof of the husband’s equity in the property. The lower court had denied the husband’s request for a credit representing the full value of the property at the time that it was converted to marital property because of deficiencies in his proof of the mortgage balance at the time it was converted to marital property.
However, the Second Department declined to consider the husband’s contention that the award of counsel fees to the wife was excessive. Justice Grossman’s order awarding the wife fees, was decided on the same day as the judgment of divorce was signed, and was not incorporated into the judgment. Thus, the order did not “necessarily affect” the final judgment and could not be reviewed (CPLR 5501[a][1]). Either the husband needed to take an appeal from the order, itself, or make sure that the award was included in the judgment (or amended judgment) appealed from.
Maureen A. Dunn, of Johnson & Cohen, LLP, of White Plains, represented the wife. Heidi A. Tallentire and Ryan J. Casson, of Blank Rome, LLP, of Manhattan, represented the husband.