| Schwartz v Schwartz |
| 2008 NY Slip Op 00482 [47 AD3d 795] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Donald J. Schwartz, Respondent-Appellant, v HelenSchwartz, Appellant-Respondent. |
—[*1] Gilbert L. Balanoff (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac] ofcounsel), for respondent-appellant.
Motion by the appellant-respondent, in effect, to resettle a decision and order of this Courtdated December 4, 2007, which determined an appeal and a cross appeal from a judgment of theSupreme Court, Nassau County, entered March 15, 2006. Presiding Justice Prudenti has beensubstituted for former Justice Krausman (see 22 NYCRR 670.1 [c]).
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the motion is granted; and it is further,
Ordered that the decision and order of this Court dated December 4, 2007 (46 AD3d 540), isrecalled and vacated, and the following decision and order is substituted therefor:
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), enteredMarch 15, 2006, which, upon an amended decision of the same court dated November 16, 2005,and a second amended decision of the same court dated February 7, 2006, made after a nonjurytrial, inter alia, awarded the plaintiff credit for all of the carrying charges for the parties' vacationhome paid during the pendency of the action, awarded her only 35% of the value of the plaintiff'sinterest in his [*2]law practice, and awarded her durationalmaintenance of only 10 years, and the plaintiff cross-appeals, as limited by his brief, from statedportions of the same judgment which, inter alia, awarded the defendant 35% of the value of hisinterest in his law practice and, without a hearing, awarded the defendant the sum of $33,838.75as an attorney's fee.
Ordered that the judgment is modified, on the law and the facts, by deleting from the thirddecretal paragraph thereof the words "all carrying charges" and substituting therefor thewords "one half of the carrying charges"; as so modified, the judgment is affirmed insofar asappealed and cross-appealed from, without costs or disbursements.
The parties were married in August 1973 and the plaintiff commenced this action in February2003. For many years, the husband has been a partner in a mid-sized Nassau County law firm,while the wife has not been employed since 1977, following the birth of the parties' son. In April2005, the parties entered into a stipulation equally dividing the proceeds of the sale of the maritalhome, savings accounts, investment accounts, and retirement accounts. Pursuant to thisstipulation, each of the parties will receive the sum of approximately $800,000 in liquid assetsand retirement accounts. The matter proceeded to a trial, inter alia, on the issues of the properamount and duration of the husband's maintenance obligation to the wife, the distribution of theproceeds from the sale or buyout of the parties' vacation home in Florida, and the amount of thewife's share of the value of the husband's interest in his law practice.
The second amended decision after trial provided that the husband would receive credit,against his retroactive maintenance obligation, for payments he made for "all carrying charges"with respect to the parties' vacation home in Florida. However, because the parties each have aone-half ownership interest in the vacation home in Florida, we reduce the credit awarded to thehusband to one half of the carrying charges he paid, from the commencement of the action to thecommencement of the trial in January 2005 (see Calandra v Calandra, 303 AD2d 704,706 [2003]; Rubin v Rubin, 262 AD2d 390 [1999]). Because the wife did not dispute, attrial, the husband's testimony that he had paid the sum of $75,140.03 in carrying charges for thevacation home in Florida from the time he commenced the action until the commencement of thetrial, we reject the wife's contention that a hearing is required on the amount of carrying chargesexpended by the husband.
Further, given the parties' long marriage and the wife's role during the early years of themarriage as the primary caretaker of the parties' son, which allowed the husband, at one time, toearn the third-highest share of profits at his law firm, and in light of evidence that the wife'sconduct toward the husband in the latter years of their marriage harmed the husband's status atthe law firm and reduced his salary and profits at the law firm, the Supreme Court providentlyexercised its discretion in awarding the wife 35% of the value of the husband's interest in his lawpractice (see Domestic Relations Law § 236 [B] [5] [d] [6]; O'Brien vO'Brien, 66 NY2d 576, 584-585 [1985]). Contrary to the wife's contention, it was not animprovident exercise of discretion for the Supreme Court not to award her prejudgment intereston her share of the husband's interest in his law practice, as there is no evidence of misconduct bythe husband that deprived her of her use or share of marital property (see Haymes vHaymes, 298 AD2d 117, 118 [2002]; cf. Lipsky v Lipsky, 276 AD2d 753, 754[2000]). Moreover, even if the husband preserved, for appellate review, his contention that thetestimony of the wife's law firm valuation expert should have been precluded, his contention iswithout merit, as the expert's use of "excess earning methodology" is an acceptable means ofvaluing a professional partnership (seeRubino v Rubino, 4 AD3d 516, 517-518 [2004]).[*3]
The husband waived his right to a hearing on the wife'srequest for the award of an attorney's fee (see Messinger v Messinger, 24 AD3d 631, 632 [2005]; Sieratzki v Sieratzki, 8 AD3d 552,554-555 [2004]; Bengard vBengard, 5 AD3d 340, 341 [2004]; Roshevsky v Roshevsky, 267 AD2d 293[1999]). The Supreme Court's award to the wife of the sum of $33,838.75 as an attorney's feewas a provident exercise of its discretion (see Domestic Relations Law § 237 [a];Herzog v Herzog, 18 AD3d707, 709 [2005]).
The parties' remaining contentions are without merit. Prudenti, P.J., Fisher, Angiolillo andMcCarthy, JJ., concur.