| Schwartz v Schwartz |
| 2008 NY Slip Op 06638 [54 AD3d 400] |
| August 19, 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 respondent-appellant to reargue the appellant-respondent's motion, in effect, toresettle a decision and order of this Court dated December 4, 2007, which determined an appealand a cross appeal from a judgment of the Supreme Court, Nassau County, entered March 15,2006, which motion was determined by decision and order on motion of this Court dated January22, 2008.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted; and it is further,
Ordered that the decision and order on motion of this Court dated January 22, 2008 (47AD3d 795 [2008]) is recalled and vacated, and the following decision and order is substituted forthe decision and order of this Court dated December 4, 2007 (Schwartz v Schwartz, 46 AD3d 540 [2007]):
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 located in Florida paid during the pendency of the action, awarded her only 35% of thevalue of the [*2]plaintiff's interest in his law practice, andawarded her durational maintenance for only 10 years, and the plaintiff cross-appeals, as limitedby his brief, from stated portions of the same judgment which, inter alia, awarded the defendant35% of the value of his interest in his law practice and, without a hearing, awarded the defendantthe sum of $33,838.75 as 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 actually paid by plaintiff to and onbehalf of defendant" and substituting therefor the words "one half of the carrying charges actuallypaid by plaintiff to and on behalf of defendant with respect to the parties' vacation home locatedin Florida and all of the carrying charges actually paid by plaintiff to and on behalf of defendantwith respect to the parties' home located in Oceanside, New York"; as so modified, the judgmentis affirmed insofar as appealed 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"he was required to pay pursuant to a pendente lite order of the Supreme Court, Nassau County(Woodard, J.) dated August 27, 2003. In pertinent part, that pendente lite order directed thehusband to pay all carrying charges for the parties' two marital residences, their vacation home inFlorida and their home in Oceanside, New York. On appeal, as limited by her brief, the wife doesnot seek relief from so much of the judgment as awarded the husband full credit for all carryingcharges he paid on the marital residence in Oceanside, New York, for which she was awardedexclusive occupancy. Accordingly, our modification of the judgment appealed from does notalter the determination to award the husband full credit for his payment of the carrying chargesfor the home in Oceanside, New York. However, because the parties each have a one-halfownership interest in the vacation home in Florida and neither party was granted exclusiveoccupancy of that home, we reduce the credit awarded to the husband, with respect to thevacation home in Florida, to one-half of the carrying charges he paid to and on behalf of thedefendant, from the commencement of the action to the commencement of the trial in January2005 (see Calandra v Calandra, 303 AD2d 704, 706 [2003]; Rubin v Rubin, 262AD2d 390 [1999]). Because the wife did not dispute, at trial, the husband's testimony that he hadpaid the sum of $75,140.03 in carrying charges for the vacation home in Florida from the time hecommenced the action until the commencement of the trial, we reject the wife's contention that ahearing is required on the amount of carrying charges expended 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 [*3]toward the husband in the latter years of theirmarriage harmed the husband's status at the law firm and reduced his salary and profits at the lawfirm, the Supreme Court providently exercised its discretion in awarding the wife 35% of thevalue of the husband's interest in his law practice (see Domestic Relations Law §236 [B] [5] [d] [6]; O'Brien v O'Brien, 66 NY2d 576, 584-585 [1985]). Contrary to thewife's contention, it was not an improvident exercise of discretion for the Supreme Court not toaward her prejudgment interest on her share of the husband's interest in his law practice, as thereis no evidence of misconduct by the husband that deprived her of her use or share of maritalproperty (see Haymes v Haymes, 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 the testimony of the wife's law firm valuation expert should have beenprecluded, his contention is without merit, as the expert's use of "excess earning methodology" isan acceptable means of valuing a professional partnership (see Rubino v Rubino, 4 AD3d 516, 517-518 [2004]).
The husband waived his right to a hearing on the wife's request for the award of an attorney'sfee (see Messinger v Messinger, 24AD3d 631, 632 [2005]; Sieratzki vSieratzki, 8 AD3d 552, 554-555 [2004]; Bengard v Bengard, 5 AD3d 340, 341 [2004]; Roshevsky vRoshevsky, 267 AD2d 293 [1999]). The Supreme Court's award to the wife of the sum of$33,838.75 as an attorney's fee was a provident exercise of its discretion (see DomesticRelations Law § 237 [a]; Herzogv Herzog, 18 AD3d 707, 709 [2005]).
The parties' remaining contentions are without merit. Prudenti, P.J., Fisher, Angiolillo andMcCarthy, JJ., concur.