FRIDMANN-HARKIEWICZ, MICHELE v. HARKIEWICZ, GARY ARTHUR

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
735
CA 13-02043
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.
MICHELE FRIDMANN-HARKIEWICZ, ALSO KNOWN AS
MICHELE HARKIEWICZ, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
GARY ARTHUR HARKIEWICZ, ALSO KNOWN AS GARY
HARKIEWICZ, DEFENDANT-APPELLANT.
CHARLES A. MESSINA, BLASDELL, FOR DEFENDANT-APPELLANT.
SHAW & SHAW, P.C., HAMBURG (JAMES M. SHAW OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
DONNA L. HASLINGER, ATTORNEY FOR THE CHILDREN, BUFFALO.
Appeal from a judgment of the Supreme Court, Erie County (Donna
M. Siwek, J.), entered February 1, 2013 in a divorce action. The
judgment, among other things, distributed the marital assets and
ordered defendant to pay spousal maintenance and child support.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sum set forth in the
sixth decretal paragraph and substituting therefor the sum of $8,320,
directing that the Prudential IRA and Vision Group IRA be distributed
to defendant as separate property, and by adding thereto a provision
pursuant to Domestic Relations Law § 236 (B) (7) (d) notifying the
parties of their right to seek a modification of the child support and
as modified the judgment is affirmed without costs.
Memorandum: Defendant appeals from a judgment of divorce that,
insofar as appealed from, distributed the marital assets and ordered
him to pay maintenance and child support to plaintiff. We note at the
outset that, while Supreme Court properly considered the appreciation
in the value of the marital residence, the court made a mathematical
error when it calculated the value of the distributive award.
Plaintiff’s distributive award should have been $8,320, not $8,350,
and we therefore modify the judgment accordingly. In addition, we
agree with defendant that the IRAs are defendant’s separate property
and should be distributed to him accordingly (see Hoadley v Hoadley,
212 AD2d 1036, 1036-1037). We therefore further modify the judgment
accordingly. We reject defendant’s contention concerning child
support and maintenance. Finally, although defendant is correct that
the court failed to include the required notice pursuant to Domestic
Relations Law § 236 (B) (7) (d) in the judgment, we conclude that the
-2- 735
CA 13-02043
court’s failure does not require reversal (see Mejia v Mejia, 106 AD3d
786, 789). Rather, we further modify the judgment by including that
notice.
Entered: July 11, 2014 Frances E. Cafarell
Clerk of the Court