| Petosa v Petosa |
| 2008 NY Slip Op 09237 [56 AD3d 1296] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| John J. Petosa, Appellant, v Cathleen A. Petosa,Respondent. |
—[*1] Ali, Pappas & Cox, P.C., Syracuse (Brianne M. Carbonaro of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Kevin G. Young, J.),entered August 14, 2007 in a divorce action. The judgment, inter alia, equitably distributed themarital property of the parties.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff appeals from a judgment of divorce that, inter alia, directed him topay child support and maintenance. Contrary to plaintiff's contention, Supreme Court properlycalculated the award of child support and set forth its reasoning for applying the statutoryformula to the total combined parental income in excess of $80,000 (see DomesticRelations Law § 240 [1-b] [c] [3]; [f]; see generally Matter of Cassano v Cassano,85 NY2d 649, 653-655 [1995]). Also contrary to plaintiff's contention, the court's award ofmaintenance was not an abuse of discretion. "As a general rule, the amount and duration ofmaintenance are matters committed to the sound discretion of the trial court" (Boughton vBoughton, 239 AD2d 935, 935 [1997]). The record establishes that the court properlyconsidered defendant's "reasonable needs and predivorce standard of living in the context of theother enumerated statutory factors" set forth in Domestic Relations Law § 236 (B) (6) (a)in awarding defendant maintenance for a period of time that will provide her with an opportunityto reestablish her career (Hartog v Hartog, 85 NY2d 36, 52 [1995]; see Sperling vSperling, 165 AD2d 338, 343 [1991]). The court also properly required plaintiff to maintaina policy of life insurance to secure his maintenance obligation (see Domestic RelationsLaw § 236 [B] [8] [a]).
We further conclude that the court properly valued and distributed the assets of plaintiff's taxaccounting business. " 'The determination of a fact-finder as to the value of a business, if it iswithin the range of the testimony presented, will not be disturbed on appeal where valuation ofthe business rested primarily on the credibility of expert witnesses and their valuation techniques'" (Johnson v Johnson, 277 AD2d 923, 926 [2000], lv dismissed 96 NY2d 792[2001]). Inasmuch as plaintiff failed to establish what the value of the business was at the timethat he acquired it, the court was justified in treating the entire business as marital property(see generally Saasto v Saasto, 211 AD2d 708, 709 [1995]). Contrary to plaintiff'scontention, the court's credit of an interest of 35% in the [*2]business to defendant was proper based on defendant's indirectcontributions toward the business (see Domestic Relations Law § 236 [B] [5] [d][6]; see also Holterman v Holterman, 3 NY3d 1, 7-8 [2004]).
Plaintiff further contends that the court abused its discretion in granting the application ofdefendant for counsel fees because her attorney failed to provide her with the requisite itemizedbills at least every 60 days (see 22 NYCRR 1400.2, 1400.3). We reject that contention. Itis the right of the client, not the adversary spouse, to be billed at least every 60 days, and theclient may waive that right (see Matter of Winkelman v Furey, 281 AD2d 908 [2001],affd 97 NY2d 711 [2002]; Johnner v Mims, 48 AD3d 1104 [2008]). By providingdefendant with the requisite statement of rights and responsibilities and executing the requisitewritten retainer agreement, her attorney complied with 22 NYCRR part 1400 (seeWinkelman, 281 AD2d 908 [2001]). Plaintiff failed to preserve for our review his contentionthat the court abused its discretion in awarding defendant counsel fees in view of her distributiveand support awards, inasmuch as he failed to request a hearing with respect to the ability ofdefendant to pay her own counsel fees (see Kish v Kish [appeal No. 1], 175 AD2d 604[1991]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Peradotto, JJ.