Garda v. Garda

Judgment modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: In this pre-equitable distribution divorce action, the court had no power to direct transfer of title to the property to the wife (see Domestic Relations Law, § 234; Szabo v Szabo, 71 AD2d 32, 35-36). On examining all of the relevant circumstances, we conclude that the court did not abuse its discretion in imposing for the benefit of the wife an equitable lien on the property in the amount of the $18,682 down payment made by the wife (see, generally, Collucci v Collucci, 86 AD2d 644, revd on other grounds 58 NY2d 834; 35 NY Jur, Liens, § 15, p 205). The court also acted well within its discretion in forgiving half of the arrears under the temporary order directing the husband to pay the mortgage, taxes, insurance and utilities (see Domestic Relations Law, § 244); these arrears are not, however, a proper subject of an equitable lien. In any event, because the trial testimony does not support the court’s figure of $30,000 total arrears for mortgage and taxes, and the plaintiff’s exhibits, on which the court may have relied in setting this figure, are not before us, we remit the matter to Trial Term for confirmation or recalculation of this amount and for entry of judgment in an amount equal to one half of this figure plus one half of the $5,000 arrears for heating the house, or $2,500 (see Domestic Relations Law, § 244). The award of $3,533 for “marital assets wasted by the defendant” is improper and is stricken. On remittal the court is 727 also directed to resolve the questions concerning ownership of personal property raised at trial. Contrary to the view expressed in the dissent, we find no basis in this record for the imposition of a constructive trust (see Scivoletti v Marsala, 61 NY2d 806; Collucci v Collucci, 58 NY2d 834, supra; Sharp v Kosmalski, 40 NY2d 119; Saff v Saff, 61 AD2d 452). II All concur, except Denman and Green, JJ., who dissent in part and vote to impose a constructive trust, in the following memorandum.