| Taverna v Taverna |
| 2008 NY Slip Op 08477 [56 AD3d 461] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Sharon E. Taverna, Respondent, v John J. Taverna,Appellant. |
—[*1] Horn & Horn, Huntington, N.Y. (Jeffrey S. Horn of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Suffolk County (Leis, J.), enteredJanuary 5, 2007, which, upon a decision of the same court dated November 9, 2006, made after anonjury trial, inter alia, (1) valued the parties' investment accounts as of the date ofcommencement of the action, rather than as of the date of trial, (2) failed to direct the sale of themarital residence, (3) awarded the plaintiff maintenance in the sum of $1,250 per month for fiveyears, nontaxable to her, (4) directed him to provide the plaintiff with health insurance, and (5)directed a distribution of the parties' personal property.
Ordered that the judgment is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof awarding the plaintiff maintenance in the sum of $1,250 per monthfor five years, nontaxable to the plaintiff, and substituting therefor a provision awarding theplaintiff maintenance in the sum of $1,250 per month for five years, taxable to her and taxdeductible for the defendant, (2) by deleting the provision thereof directing the defendant toprovide the plaintiff with health insurance, and (3) by deleting the provision thereof directing adistribution of the parties' personal property; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements, and the matter is remitted to the Supreme Court,Suffolk County, for a hearing regarding the distribution of the parties' personal property and, ifnecessary, for the entry of an amended judgment containing a distribution thereof.[*2]
The defendant contends that the court erred in valuing theparties' investment accounts as of the time of commencement of the action, rather than as of thedate of trial. "It is well settled that the trial court has broad discretion in selecting the dates for thevaluation of marital assets and, depending on the particular circumstances of the case, mayappropriately fix different valuation dates for different assets" (Kirshenbaum vKirshenbaum, 203 AD2d 534, 535 [1994]; see Domestic Relations Law § 236[B] [4] [b]; Pauk v Pauk, 232 AD2d 386, 388 [1996]). Here, the trial court properlyexercised its discretion in valuing the parties' investment accounts as of the time ofcommencement of the action based on its determination that the defendant dissipated theaccounts during the pendency of this action (see Iwanow v Iwanow, 39 AD3d 471, 474 [2007]; Siegel vSiegel, 132 AD2d 247, 251 [1987]).
Furthermore, contrary to the defendant's contention, the court did not err in declining toconsider his tax liabilities resulting from the liquidation and distribution of the investmentaccounts. Where, as here, a party failed to offer any competent evidence concerning taxliabilities, the court was not required to consider the tax consequences of its award (seeMilewski v Milewski, 197 AD2d 562, 563 [1993]; Schanback v Schanback, 159AD2d 498 [1990]; Maloney v Maloney, 137 AD2d 666, 667 [1988]).
Under the circumstances, the trial court providently exercised its discretion in refusing toorder the sale of the marital residence, particularly since the defendant received a creditrepresenting his share of the equity in the residence (see Jarrell v Jarrell, 276 AD2d 353,354 [2000]; Ierardi v Ierardi, 151 AD2d 548, 548-549 [1989]). Moreover, contrary to thedefendant's contention, the court properly valued the marital residence based on the most recentappraisal, which was proximate to the date of trial (see Moody v Moody, 172 AD2d 730[1991]; Wegman v Wegman, 123 AD2d 220, 232 [1986]).
Upon consideration of the relevant factors, the trial court providently exercised its discretionin awarding the plaintiff maintenance in the sum of $1,250 per month for five years (seeDomestic Relations Law § 236 [B] [6] [a]; Hathaway v Hathaway, 16 AD3d 458, 460 [2005]). However, theaward of maintenance should have been made taxable to the plaintiff and tax deductible for thedefendant (see Grumet v Grumet, 37AD3d 534, 536 [2007]; Markopoulos v Markopoulos, 274 AD2d 457, 459 [2000]).
The defendant contends that the court erred in ordering him to provide the plaintiff withhealth insurance. Since, the plaintiff has consented to relieving the defendant of his obligation toprovide her with health insurance, we delete that provision from the judgment.
The defendant contends that the trial court erred in failing to distribute the parties' personalproperty. Although the judgment contained a provision directing the distribution of the parties'personal property as set forth in exhibit 1, annexed thereto, that exhibit did not provide a basisfor distribution. As there is no indication in the record that the court did, in fact, direct thedistribution, we remit the matter to the Supreme Court, Suffolk County, for a hearing regardingthe distribution of the parties' personal property and, if necessary, for the entry of an amendedjudgment thereafter containing a distribution thereof.
The defendant's remaining contentions are without merit. Rivera, J.P., Lifson, Miller andEng, JJ., concur.